MONDAY, MAY 30, 2016

R E A S O N S F O R J U D G M E N T

VERBEEM, J. (Orally):

The accused stands charged on a two-count indictment alleging that on August 11, 2013, at the Township of Pelee Island, he operated a motor vehicle while his ability to do so was impaired by alcohol and caused bodily harm to John Thomas Paton as a result; as well, on or about August 11, 2013, in the Town of Leamington, he failed or refused to comply with a demand made to him by a peace officer under section 254(3) of the Criminal Code R.S.C. 1985, c. C-46, to provide samples of his breath that were necessary to enable a proper analysis of the concentration of alcohol in his blood, and that he did so without reasonable excuse.

Background:

There is no dispute that shortly before eight P.M. on August 11, 2013, the accused was operating a 1999 white GMC Sierra pickup truck bearing Ontario plate number AC44436 on McCormick Road, a dirt road located at the south end of Pelee Island in Ontario. John Thomas Paton was a front seat passenger in that vehicle. There is no dispute that as the vehicle approached a 90-degree bend in the road, it left the travelled portion of the roadway and struck a tree. As a result of the collision, Mr. Paton lost consciousness and suffered a number of serious acute physical injuries. Mr. Paton alleges that he also sustained psychiatric impairments as a result of the accident. The accused was also injured.

While Mr. McCormick and Mr. Paton have differing recollections about the pre-collision events that unfolded over the course of August 11, 2013, there is some accord in their evidence. To be clear, my reference to their differing accounts does not mean that I have approached the disposition of the counts before me on the basis of a credibility contest where I must pick which version I prefer. I do not. Instead, I will apply the principles set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, to reach my findings, recognizing that the burden remains on the Crown to prove the essential elements of each of the offences beyond a reasonable doubt.

They agree that late in the afternoon, the two of them attended an L.C.B.O. location and then at the Pelee Island Winery. They differ on the amount of alcohol Mr. McCormick consumed at the winery. They agree that they left the winery shortly after five P.M. They agree that immediately before the accident they had a dispute about whether Mr. Paton could consume a beer in the accused’s vehicle while they returned home.

There is a temporal discord in their respective narratives. Mr. Paton recalls that the collision occurred almost immediately after they left the winery, between five and 5:30 P.M. Mr. McCormick states and the balance of the evidence supports the accident occurred minutes before eight P.M., approximately two and a half to three hours after they left the winery.

The causal mechanism of the single-vehicle collision is in dispute. The Crown asserts that at the time of the accident, Mr. McCormick’s ability to operate his motor vehicle was impaired by alcohol and that the accident that caused bodily injury to Mr. Paton resulted from that impairment. The accused denies that his ability to operate the vehicle was impaired at the relevant time. Instead, he asserts that Mr. Paton, who was intoxicated, intentionally and unexpectedly pulled hard on the steering wheel, causing the vehicle to strike the tree.

In addition to Mr. Paton, the Crown called evidence from three witnesses who described their observations of, and interactions with, Mr. McCormick at the winery. The Crown also called evidence from Sharon McCormick, a distant relative of the accused with no connection to him prior to August 11, 2013, who interacted with Mr. McCormick almost immediately after the collision. P.C. Antonio Mannina, who attended, observed and interacted with the accused at the accident scene, arrested him on a charge of impaired driving, cautioned him and made a breath sample demand, and P.C. Michael Gray, who attempted to take a breath sample from the accused, were also called.

Mr. McCormick was airlifted off the island at 11:25 P.M., in the custody of P.C. Mannina, and transported to Leamington District Memorial Hospital for medical care. Mr. McCormick was given the opportunity to consult with his counsel at 12:17 A.M. on August 12^th, three and a half hours after his arrest. P.C. Gray states that he officially asked the accused to provide a breath sample at 1:27 A.M., after he had been medically cleared to do so. He maintains that the accused refused on the basis that he had received legal advice not to provide a sample.

Mr. McCormick raises three defences to the failure to provide a breath sample charge:

a) The arresting officer lacked requisite

grounds to make a breath demand;

b) The words of refusal he allegedly uttered

were adduced in violation of his right to counsel pursuant to section 10(b) of the Canadian Charter of Rights and Freedoms; and

c) He did not refuse to provide a sample.

Mr. McCormick has brought an application pursuant to section 24(2) of the Charter to exclude from evidence any utterances or statements made by him to police, specifically any words alleged to be his refusal to provide a breath sample. The trial proceeded as a blended trial proper and voir dire on the alleged Charter breach. Prior to explaining my disposition of the charges against the accused, I will review the evidence adduced in the proceeding.

Evidence of John Paton:

John Paton and Jacques McCormick were longtime friends. In August 2013, Mr. Paton attended on Pelee Island where Mr. McCormick lived, together with his parents, in order to help him with a building demolition and salvage project. Prior to August 11, 2013, Mr. Paton was on the island for about a week and slept in a tent at the back of the McCormick residence.

Mr. Paton’s recollection of the events of August 11, 2013 is poor. He recalls that earlier in the day, he and Mr. McCormick worked at the McCormick residence stripping down wire which was previously removed from the building demo project. Mr. Paton started drinking beer that morning around 10:30 or 11 A.M. and continued to consume at least an estimated equivalent of four and a half cans of beer - he wasn’t keeping track - over the next four to five hours while he worked. While they were working, he saw Mr. McCormick with a can of beer in his hand, but he did not see him consume any beer that day.

Sometime before four P.M., Mr. McCormick drove them to the Pelee Island L.C.B.O. in order to get more beer, which Mr. Paton planned to consume. He agrees that the purpose of attending the L.C.B.O. could have been to return empties and he agrees that he was drunk when they arrived there, although he does not recall when that was. They purchased more beer, but he doesn’t know how much. They were at the store for a few minutes. When they left the L.C.B.O., Mr. McCormick drove them to the Pelee Island Winery which was five minutes away.

On arrival, they each had a small sample glass of wine and Mr. McCormick purchased a full bottle of wine. They sat outside in a picnic area at the winery and consumed the bottle together. While he originally testified that each of them consumed a half of the bottle of wine, in cross-examination he concedes that he has no idea how much of the bottle Mr. McCormick consumed but recalls that Mr. McCormick was the one pouring the glasses.

Originally, Mr. Paton testified that Mr. McCormick purchased a second bottle of wine and they each consumed one half of that bottle. Later, he conceded that he has no recollection of a second bottle of wine. His memory of the events of the day is, in his words, “sketchy” and he may have gaps in his recollection about what occurred at the winery. In response to a suggestion that Mr. McCormick only had two glasses from the bottle, he stated: “I wouldn’t even know.”

He recalls that he and Mr. McCormick remained together in the picnic area the entire time they were at the winery. While he agrees that he was definitely drunk while there, he states he was not confrontational with Mr. McCormick. Nothing unusual happened when they left the picnic area and returned to the winery parking lot. No one spoke to him or Mr. McCormick before they left the winery, including while they were in the parking lot in Mr. McCormick’s pick-up truck. His evidence in that regard is contradicted by the accused and three Crown witnesses.

When Mr. Paton left the winery, he was in good spirits and they were on their way back to the McCormick residence. Mr. McCormick was driving, and Mr. Paton was an unbelted front seat passenger. Mr. Paton stated he wanted to have a beer in the truck. Mr. McCormick told him to wait until they got to his mother’s house. They argued. Mr. Paton reached into the back seat of the truck for one of the beers purchased at the L.C.B.O. He concedes it is possible that he was agitated and acting hyper in the truck. He believes that the accident happened at this point in time, although he does not know how it happened. He states that the collision occurred within ten minutes from the time they left the winery. It did not. The evidence of a number of witnesses indicates that the accused and Mr. Paton left the winery shortly after five P.M., which I accept.

The accident occurred at a minute or two prior to eight P.M. Mr. Paton concedes that there is a significant temporal gap in his narrative, which he attributes to his failing memory. He concedes that he does not recall chunks of time from August 11, 2013. He does remember reaching for a beer and looking up and seeing brown. His next recollection is being shaken by someone on the island and then waking up in a helicopter.

Mr. Paton characterizes himself as an alcoholic, and his struggles with alcohol abuse pre-date 2013. As of August 2013, he consumed alcohol on a daily basis. His alcohol tolerance was low and he felt legally impaired after a few drinks. He was prone to become confrontational and aggressive when he consumed alcohol, and his memory was affected after consuming two to four alcoholic beverages.

Post-accident, Mr. Paton was airlifted to a hospital in London and treated for lacerations about his left eye and chest, various fractures, a lacerated spleen, injured ribs and head and facial trauma. The scope of his physical injuries is not in dispute. Since the accident, he has had multiple surgeries as a result of his accident related injuries. He alleges that he sustained either traumatically induced bipolar disorder or traumatically induced schizophrenia as a result of the accident, although a formal diagnosis in that regard has not been made.

Mr. Paton recalls Mr. McCormick initiating a conversation with him sometime around August 11, 2013 about Mr. Paton leaving Pelee Island prior to the salvage job being completed. He does not recall why Mr. McCormick raised the issue with him and he does not recall the details of the conversation. He does not recall discussing that issue on August 11, 2013 at all.

In cross-examination, the defence put Mr. McCormick’s version of what transpired between the time they left the winery and the time of the collision to Mr. Paton. That version consists of the following:

a) The two of them visiting Pat and Rose Pierce

at the Pierces’ home;

b) Mr. Paton consuming some of the beer

purchased at the L.C.B.O. while they were at the Pierce home;

c) Mr. Paton telling Mr. Pierce “I bet we don’t

make it home tonight” and “I’m going to make sure Jacques doesn’t make it home tonight,” Mr. Pierce replying, “If anything happens, you weren’t here,” and Mr. Paton stating, “I will say we were at the winery,” together with a comment about insurance;

d) Mr. Paton receiving a hot pepper from Mrs.

Pierce, Mr. Paton giving the hot pepper to Mr. McCormick and telling him it was a sweet pepper; and

e) Mr. McCormick leaving Mr. Paton at the Pierce

residence while he went swimming at a nearby beach, and Mrs. Pierce eventually bringing Mr. Paton to the beach.

Apart from a vague memory about something to do with peppers and something to do with the washroom which may have connected to the Pierce residence, he does not recall any of those events.

His memory of the moments immediately prior to the collision as put to him by the defence is somewhat more robust. He recalls that before the accident he and Mr. McCormick were engaged in a discussion about whether Mr. Paton could have a beer in the truck. Mr. Paton reached for a beer with the intention of drinking it in the truck. He recalls Mr. McCormick saying “No, wait.” He does not recall Mr. McCormick putting up his hand to block him from getting a beer. He does not recall retrieving a beer from the back and holding it in his outstretched arm away from Mr. McCormick. He specifically denies that he put one of his hands on the steering and then both hands on the wheel, resulting in Mr. McCormick losing control of the vehicle and striking the tree and as asserted by Mr. McCormick.

Finally, Mr. Paton concedes he has a criminal record that includes multiple convictions for assault and multiple convictions for assault with a weapon. His last conviction was in 2005, assault with a weapon. Some but not all of the assaults were related to his consumption of alcohol. Mr. Paton has also commenced a civil action for damages against Mr. McCormick, Pelee Island Winery and three employees of the winery, all of whom gave evidence in this proceeding, as a result of the injuries and consequential losses he alleges he sustained as a result of the accident.

I will now review the evidence of the balance of the Crown witnesses, although not in the order they were called. Instead, I will review the evidence of the witnesses in the chronological order they encountered Mr. McCormick on August 11, 2013, starting with the evidence of Janet Kazakevicius, Doug Pearce and Keenan McEachern, who are the Crown witnesses that observed and/or interacted with Mr. McCormick and Mr. Paton at the winery, together with Sherry Bondy, the manager of the winery who was on duty on the afternoon of August 11, 2013.

Evidence of Janet Kazakevicius:

Janet Kazakevicius, who I will refer to as Janet K., and her partner arrived at the Pelee Island Winery as patrons between 4:30 and five P.M. on August 11, 2013. While sitting at a picnic table near a barbecue in the wine garden, she observed a gentleman who appeared to have had too much to drink. He staggered around the barbecue near her table for five to eight minutes. He got within five feet of her. He was unsteady on his feet. She concluded that he was very drunk. Eventually, he approached a smaller man sitting at a nearby picnic table and hit him on the shoulders. The smaller man stood up and the two of them scuffled around and argued. The larger man pushed the smaller man towards the parking lot. She did not think that either of them should be driving. She went into the winery and advised a bartender that she had just observed two people who were too drunk to drive heading toward the parking lot.

When she returned to the lot, she saw the two men in a pickup truck with the bigger man in the driver’s seat. The bartender and another man approached the pick-up truck. The bartender tapped on the driver’s side window and said, “Excuse me, sir. Do you think you should be driving?” She estimates the interaction between the driver and the bartender lasted between five and ten seconds. The driver then roared the truck up and over a two- to three-foot grass median that separates two areas of the parking lot. Janet K. called the police from the parking lot between five P.M. and 5:30 P.M. As she did so, she observed the white pickup trick speeding down the driveway leading from the winery to the adjoining Pelee Island roadway, where it turned onto the road without stopping as it was required to do. She advised the police of the make, model and plate number of the truck and the suspected condition of its occupants.

In cross-examination she states:

a) She called the police at 5:21 P.M.

b) She made observations of the man who

ultimately drove the pickup truck for ten to 15 minutes after she arrived at the winery.

c) At one point he stumbled and almost fell when

he was about ten feet away from her.

d) The large stumbling man was wearing a T-shirt

and a Scottish looking cap which she further described as a puffy hat with a peak.

e) She did not observe either man enter the

pickup truck. She entered the winery building before they got to the truck and reported her concerns to the bartender. Then she moved her own car to another part of the parking lot because she was afraid it would be hit by this individual.

f) She observed the bartender approach the

pickup truck after she moved her car. She witnessed the entire conversation between the bartender and the driver, which was limited to one question by the bartender. She does not know if the driver answered that question before the truck roared away.

g) In her estimation, the truck would have

gotten up to a fair amount of speed in order to get over the grass median.

h) Cars normally travel between five to ten

kilometres per hour in the parking lot, but the pickup truck was moving much faster than that.

i) The pickup truck did not stop at the end of

the driveway before it turned onto the road. It was moving at an excessive rate of speed when it turned and then it roared away.

j) She provided an e-mail statement of her

observations to police more than six days after the incident.

I observed that during her evidence, this witness was not asked to, nor did she, identify the accused as the person she observed stumbling around the winery or as the operator of the pickup truck.

Evidence of Doug Pearce:

On August 11, 2013, Mr. Pearce, who was 20 years old at the time, was working at the winery as a tour guide. At approximately five P.M., he received information from a customer which caused him to attend the winery’s parking lot to locate two gentlemen whom he was told appeared to be intoxicated. There he observed two men near a white pickup truck that was 60 feet away from him. They were stumbling around near the front of the truck, which was parked in the winery’s main lot. The main lot is separated from an overflow lot by what he described as a grass curb with trees which the front of the pickup faced. He says he observed the two men stumbling, fumbling with keys and having difficulty getting into the truck.

Once he confirmed that there were two men in the parking lot as reported, he and his co-worker Keenan McEachern approached them to deal with the situation because he was concerned that an intoxicated individual was going to drive off the winery property. He did not observe the individuals enter the vehicle. Both men were inside the pickup truck when he and Mr. McEachern approached it. When they arrived at the vehicle, the driver opened his window and spoke to him and Mr. McEachern for approximately ten to 15 minutes. In his view, the driver appeared to be intoxicated. Mr. McEachern asked for the driver’s keys, something which Mr. McEachern denies, and Mr. Pearce asked if he needed a cab. The driver said he was not giving up his car keys and he did not want a cab. The driver went on to state he knew a relative of one of Mr. Pearce’s co-workers and that the incident didn’t matter. Mr. Pearce stood two feet from the driver during the course of their conversation. Mr. Pearce identified Mr. McCormick as the operator of the pickup. The encounter at the winery ended with the truck driving over the grass hill, which took a few seconds. It then turned right and proceeded to leave the parking lot. Mr. Pearce did not converse with the passenger in the truck, despite the passenger’s occasional interjections in the conversation.

After the encounter, he and Mr. McEachern reported the incident to their manager Ms. Bondy. Mr. Pearce provided a statement detailing his observations to police on August 17, 2013.

In cross-examination, Mr. Pearce states that:

a) When he went to the parking lot he was

looking for two people who were intoxicated because that was what reported to him.

b) When he initially saw the two men in the

parking lot they were 60 feet away from him and they were a few feet from the truck. He only observed them take a step or two when he first saw them. The next time he saw them, they were in the vehicle.

c) When he gave his statement to the police, he

was specifically asked if he saw signs of impairment with respect to the driver, and the only indicia he identified was that the driver was rambling on when he spoke to him.

d) He did not identify fumbling, stumbling or

problems with keys in his police statement. His memory with respect to the encounter was better at the time of the statement than the day he testified at trial.

e) The encounter with the driver happened at

approximately five P.M.

f) After reviewing his police statement, he

recalls that the driver opened the door at some point during their conversation because he asked him to. The driver said he was okay to drive.

g) Mr. Pearce did not smell alcohol on the

driver even when he was talking to him from two feet away.

h) In his statement to police, he described the

driver as having grey hair. He wore a button-up shirt and he was above average in height and weight. He described the passenger as tall and wearing a T-shirt.

i) He has a specific recollection of Mr.

McEachern asking for the keys.

j) The parking lot consists of gravel. There

are no marked parking spots, and people use the grass median to guide them where to park.

k) He was standing near the truck when it began

to move. It took the pickup truck a few seconds to get over the median, which is two to three feet at its highest point. He watched the truck leave the parking lot and it did so without any difficulty.

l) He disagrees with the suggestion that Mr.

McCormick’s presentation during their parking lot conversation was consistent with nervousness or anxiety.

In re-examination Mr. Pearce confirms that once he identified the driver’s rambling speech as a sign of impairment, the officer did not ask him if he saw any other signs of impairment.

Evidence of Keenan McEachern:

On August 11, 2013, Mr. McEachern, who was 21 years old at the time, was working as a tour guide at the Pelee Island Winery. At approximately five P.M., while he was working inside the winery, his co-worker Doug Pearce asked him to accompany him to the parking lot where they observed a white pickup truck with two occupants already inside. Based on information that he had received from Mr. Pearce, as well as his own observations, Mr. McEachern was concerned that the driver of the vehicle was intoxicated.

They approached the pickup’s driver side door where Mr. McEachern had a short conversation with the driver in an effort stall him. He wanted to keep the driver at the winery for as long as possible because he was possibly intoxicated. He does not recall the specifics of their conversation, other than at one point the driver said, “It’s okay” and “Respect,” and shook his hand. He allows that it’s possible the driver was telling him he was okay to drive.

His interaction with the driver lasted a total of five minutes and was characterized by some silence. As between he and Mr. Pearce, Mr. McEachern did most of the talking. He does not recall if Mr. Pearce interacted with the driver at all. He believes that he and Mr. Pearce were the same distance away from the driver during their encounter. He allows that the passenger in the pickup may have said a few words but Mr. McEachern did not speak with him. His conversation with the driver took place through the truck’s open window. In detailing his observations of signs of impairment, he states that the driver presented with slow movement and slurred speech. He characterizes the driver’s hand movement as slow and not normal when he shook it.

After their conversation ended, Mr. McEachern observed the pickup truck leave by driving straight over the grass median that divides the two parking lot areas. He had never seen a vehicle do that before. Acknowledging that he is not a good judge of speed, he estimates that the truck was proceeding at approximately ten kilometres an hour when it went over the median and may have been travelling a bit faster when it left the parking lot area. During his evidence, he identified Mr. McCormick as the driver of the pickup truck.

In cross-examination, Mr. McEachern states:

a) He went into the parking lot area looking for

someone who he had already been told was intoxicated.

b) The passenger of the truck was aware that he

and Mr. Pearce were speaking to the driver and he remained in the front seat for the duration of their discussion.

c) The driver was wearing a T-shirt. He was not

wearing a hat.

d) He did not detect the odour of alcohol when

talking to the driver.

e) When he describes the driver’s slow movements

and slurring words, he means the driver was speaking at a pace that was slower than what he expected. He thinks the driver may have been stuttering a bit as well. It is difficult for him to recall exactly how the driver was speaking.

f) Contrary to the evidence of Mr. Pearce, he

did not try to take away the driver’s keys and he did not ask him for his keys.

g) The passenger was taller than the driver.

In re-examination, he clarified that while

they were seated the passenger’s head was taller than the driver’s head, but he did not engage in a close examination of the passenger.

h) The pickup truck drove over the grass median

without any difficulty. He does not recall the truck roaring over the median.

i) The winery’s driveway and parking lot surface

are gravel and dirt. The road that leads to the winery driveway is paved. As it left, he observed the truck stop at the end of the driveway for a long moment before it turned onto the paved road.

In re-examination Mr. McEachern confirmed that he gave a statement to police six days after the incident and it was hard for him to remember at that time if the accused was slurring his speech.

Evidence of Sherry Bondy:

Sherry Bondy was employed as a manager of the Pelee Island Winery on August 11, 2013. She states that the winery has a large gravel parking lot that can accommodate up to 50 cars. The lot consists of two sections divided by a three foot high grass berm. A long row of trees spaced one and a half to two car lengths apart runs along the raised grassed area. There are two roadway access points that connect the individual portions of the parking lot at either end of the grass berm. There are no marked parking areas in the lot. The berm marks where people can pull their vehicles up to in order to park. There is a picnic area at the winery where customers can drink wine and socialize. The picnic area was busy on August 11, 2013, and it can seat 200 to 300 people.

On August 11, 2013, she received a report from an employee, Keenan McEachern, that led her to call police at 5:50 P.M. Police arrived at the winery sometime between 6:20 and 6:30 P.M. and confirmed that they had received a call and were actively looking for a truck. Ms. Bondy did not make any direct observations of the accused or Mr. Paton at any point in time.

I will now review the evidence of Sharon McCormick, P.C. Antonio Mannina and P.C. Michael Gray, who are the Crown witnesses who made observations of and interacted with the accused after the collision.

Sharon McCormick is a long-time resident of Pelee Island. At eight P.M. on August 11, 2013, she came upon the scene of the single vehicle collision on McCormick Road near its intersection with Stuart Road. The accident occurred near a small parking area servicing a wooded park with its entrance at the roadway. As she turned onto McCormick Road, which is essentially a dirt road, from Stuart, she observed the accused’s pickup truck facing southeast and smashed into a tree, adjacent to the travelled portion of the roadway at the beginning of a 90-degree bend in the road.

She pulled up to the truck and asked the driver, “Do you need help?” He responded, “No. No.” She asked, “Are you hurt?” He said, “No, I’m not hurt.” She said, “Did you call the police?” He said, “No police. I just live around the corner.”

When she spoke to the driver, he responded immediately; however, he slurred his words. The entire conversation lasted a minute. She did not notice Mr. Paton the first time she was at the scene.

Ms. McCormick left the scene to call police because she could not get a cell signal in the area. She travelled 3.7 kilometres to the west dock area and reported the accident via 911. She only requested police assistance.

After making the call she returned to the accident scene, arriving eight minutes after she left. When she returned, she saw the driver holding up a limp grey man and supporting him against the truck. Between the two of them, the driver was the larger man. The other man appeared to have serious injuries. She observed blood on each of them and advised the driver that she had called the police and that she was going to leave the scene again to call an ambulance. The driver did not respond when she said that she had called the police.

After calling for an ambulance, she returned to the scene a second time, exited her vehicle and approached the two men. She heard the bigger man, the driver, say, “Wake up, buddy. Wake up, buddy.” He was slapping the smaller man’s face and saying, “Give us a hug, buddy. Give us a hug.” Ms. McCormick is a former nurse. She advised the driver to stop slapping the man and told him he needed to lay him down. The driver said, “I know what I’m doing” and kept slapping him.

Police eventually arrived. While she advised officers that she had called them, she does not believe that she told the officers who she observed in the driver’s seat when she discovered the collision. The officers did not take a full statement from her at the scene. An officer did attend at her home at approximately 11:30 P.M. that night and took a statement, and it was at that time that she advised police who was driving the pickup.

Ms. McCormick has travelled that portion of McCormick Road where the accident occurred many times and does so cautiously because it is a busy spot for cyclists and tourists. In her evidence, she identified the accused as the person she saw in the driver’s seat of the pickup truck when she initially arrived at the scene.

In cross-examination, Ms. McCormick states:

a) She was able to get cell phone reception near

the Pelee Island OPP office, and she confirmed the medical base for Pelee Island was close to that location.

b) McCormick Road is a dirt road and it turns at

a 90-degree angle in the area where the collision occurred.

c) She gave a statement to the OPP three hours

after the incident while the events were fresh in her mind, and when she did so, she likely knew that the police were investigating an impaired charge.

d) The statement she gave to police does not

record her observation that the driver presented with slurred speech. She did not testify that the driver presented with slurred speech in her evidence at the preliminary hearing.

e) During the preliminary hearing she testified

that the accused presented with odd speech at the accident scene because of both its cadence and its content. In particular, she found it odd that he had been involved in an accident but he didn’t want any help.

f) When she testifies to the accused slurring

his speech, she means the pitch of his voice went up and down and he spoke with a slow cadence.

g) She observed the accused holding up the other

man for approximately six to eight minutes before the police arrived.

h) In her statement to police she indicated that

she suspected the accused had been drinking, but she did not advise the officer about the specific nature of the observations that led her to that conclusion. In her evidence those observations were limited to the way his voice went up and down, the slow way he was talking and that he didn’t want help.

i) As a nurse, she agrees that a person could be

in shock right after a motor vehicle accident and that the accident could have occurred less than a minute before she arrived at the scene. She posed her questions to the accused within seconds to a minute of arriving at the scene.

j) She is reasonably certain that she asked the

accused “Do you need help?” “Are you hurt?” and “Have you called the police?” At the preliminary hearing, she deposed that she thought she asked the accused “Are you okay?” and/or “Are you hurt?” She remains reasonably certain that she asked the accused “Do you need help?”

k) When she arrived at the scene the second

time, the driver told her “We both need help.” Based on what she knows now, she agrees an ambulance was required at the scene immediately.

l) The driver was wearing a shirt.

m) The driver slapped the other man gently on

one side of the face and then the other in an effort to wake him up.

n) In her statement to the police, she did not

report that she told the driver to stop slapping the other man, and she did not give that evidence at the preliminary hearing.

Evidence of Constable Antonio Mannina:

P.C. Mannina has been employed as a police officer with the Ontario Provincial Police since April 2008. On August 11, 2013, he was on duty on Pelee Island, paired with P.C. Brad Williams. At 5:25 P.M., he received a report that originated from Janet K. about a possible impaired driver who left Pelee Island Winery in a white pickup truck bearing the plate number associated with the accused’s vehicle. The officers arrived at the winery 20 to 25 minutes later. Thereafter, the officers continued to patrol the island looking for the described vehicle. Before they found it, they were dispatched to the collision scene and proceeded to that location.

Upon arrival, P.C. Mannina observed a white pickup truck smashed against a tree and the accused holding up another man, later identified as Mr. Paton, on the driver’s side of the vehicle. P.C. Mannina also received information from Sharon McCormick at the scene. He states that she advised him that the accused was sitting in the driver’s seat when she arrived at the scene. She pointed at Mr. McCormick and said, “He is the one driving.” This is inconsistent with Ms. McCormick’s evidence.

It appeared to him that both Mr. Paton and Mr. McCormick hit their heads on the windshield. P.C. Mannina observed Mr. Paton to be pale and lifeless. He did not move Mr. Paton pending EMS arrival because he did not know the extent of his injuries. He approached Mr. McCormick, who was still holding Mr. Paton up, and detected the odour of alcohol on his breath. At that point, the only words he exchanged with Mr. McCormick were to advise him not to move Mr. Paton and to continue holding him in place. He did not record any other observations about Mr. McCormick’s condition at that time.

EMS arrived and secured both Mr. McCormick and Mr. Paton onto backboards. At 8:51 P.M. and while Mr. McCormick was strapped to the backboard, P.C. Mannina placed him under arrest for impaired operation of a motor vehicle because he had grounds to believe that he was the driver and because of the odour of alcohol on his breath. P.C. Mannina cautioned Mr. McCormick and asked him if he wanted to contact counsel. Mr. McCormick answered in the affirmative and identified Mr. Kirk Munroe, as he then was, as his counsel of choice. No attempts were made to contact counsel until shortly after midnight. P.C. Mannina asked Mr. McCormick if he wanted to make a statement and he declined.

P.C. Mannina read a formal demand for the accused to provide a breath sample for analysis. The defence concedes that the language of the demand given was appropriate. After he read the breath demand and after he placed the accused under arrest, P.C. Mannina again noticed the odour of alcohol. At some point after he arrested the accused, he noticed that the accused’s eyes were red, bloodshot and glossy. He does not recall when he first made that observation, but he believes it was while they were still at the accident scene. He did not attempt to further the investigation while on the island because there is no real police station there and he was focused on addressing the medical needs of the accused and Mr. Paton.

Mr. Paton and Mr. McCormick were taken by ambulance to the medical/ambulance base on Pelee Island where they received triage care that began at approximately 9:03 P.M. The base is effectively a house with a residence upstairs. Ultimately, both men had to be airlifted off the island for treatment. They arrived at Pelee Island airport shortly after 10:30 P.M., and eventually Mr. Paton was flown to London and P.C. Mannina accompanied Mr. McCormick to Leamington.

At 11:25 P.M., the helicopter used to transport Mr. McCormick arrived at the airport. Pending arrival of the helicopter, P.C. Mannina, together with attending paramedics, waited in the ambulance with Mr. McCormick at the airport and they accompanied him in the helicopter.

On arrival at the hospital, P.C. Mannina searched for a cordless phone that Mr. McCormick could use to consult with counsel, while Mr. McCormick was treated by hospital staff. Nine minutes later, after locating such a phone, P.C. Mannina called the accused’s counsel of choice. Specifically, at 12:14 A.M., P.C. Mannina informed Mr. Munroe about the subject matter of the arrest and the nature of the resulting charge. Next, he momentarily entered the room where Mr. McCormick was being treated and immediately left after the phone was provided to Mr. McCormick. At 12:21 A.M., Mr. McCormick’s telephone consultation with Mr. Munroe ended. Mr. McCormick was then the subject of further medical attention while P.C. Mannina and the breath technician waited around.

P.C. Mannina confirms that P.C. Michael Gray, a qualified breathalyser technician, attended at the hospital in order to take a breath sample from Mr. McCormick. Eventually, P.C. Mannina introduced P.C. Gray to Mr. McCormick. He acknowledges that at 1:11 A.M., after P.C. Gray initially interacted with the accused, P.C. Mannina unsuccessfully attempted to contact Mr. McCormick’s counsel a second time.

At 1:27 A.M., P.C. Gray advised him that Mr. McCormick refused to provide a breath sample. P.C. Mannina did not record and he does not recall the time he transferred custody of Mr. McCormick to P.C. Gray, although from his notes he is certain that it is before 1:27 A.M. He does not recall if he was present in the hospital room with the accused once P.C. Gray assumed custody. P.C. Mannina continued to detect a strong odour of alcohol on Mr. McCormick’s breath while he was near him at the scene, in the ambulance, at the ambulance base and at the hospital.

In cross-examination, P.C. Mannina indicates that it was apparent that the accident was severe when he arrived at the scene. He was primarily concerned about Mr. Paton’s injuries and to a lesser extent Mr. McCormick’s injuries. He does not recall if Mr. McCormick was wearing a shirt. He directed Mr. McCormick to continue to hold up Mr. Paton for about 11 minutes until EMS arrived. He did not allow Mr. McCormick to move Mr. Paton. He does not recall Mr. McCormick stating at the accident scene, “This guy was trying to fight me” or anyone telling Mr. McCormick, “We consider him a victim” in reference to Mr. Paton.

He formally advised Mr. McCormick he was under arrest while Mr. McCormick was restrained on the backboard in the ambulance and in the presence of EMS personnel. He advised Mr. McCormick of his rights to counsel and asked, “Do you want to call a lawyer now?” Mr. McCormick replied, “Yes. Kirk Munroe.” Notwithstanding that exchange, he did not attempt to contact Mr. Munroe until after midnight. He doesn’t know if Mr. McCormick was told that officers would facilitate contact with his lawyer as soon as possible. His notes do not document any further conversations with Mr. McCormick at all about rights to counsel after the initial arrest at 8:51 P.M. until the call was placed to Mr. Munroe at 12:17 A.M.

P.C. Mannina indicates that owing in part to Mr. McCormick’s injuries, his right to counsel could not be facilitated on the island. However, he did not provide that information to the accused. The accused was not told that he would have to wait until he arrived at the hospital in order to call his lawyer. P.C. Mannina had a cell phone with him on the island, but he could not obtain a reliable signal there. He says that if he had service, he would have provided his phone to the accused to allow him to contact counsel.

The ambulance arrived with Mr. McCormick and P.C. Mannina at the Pelee Island airport around 10:30 P.M. The helicopter left at 11:25 P.M. In the interim, he and Mr. McCormick remained in the ambulance. There is a building at the airport, but he does not know if it was occupied at the time. He made no attempt to see if there was a phone in the building that could have been used by the accused to facilitate contact with his lawyer. He considered bringing to Mr. McCormick to the OPP office on the island so he could contact counsel. He decided against it because the office is located on the second floor of the building and it is only accessible by a lengthy set of stairs in a “U” shaped configuration, which he did not think the accused could ascend in his condition and while strapped to a backboard. Further, in his view, there was nowhere at the medical base that would have afforded Mr. McCormick adequate privacy to contact his lawyer from that location. He doesn’t know if the base had a land line phone. There were doctors and paramedics present on the first floor while they were there. As Mr. McCormick was strapped to a backboard, he could not get him up the stairs to the base’s second floor to facilitate contact from that location.

P.C. Mannina confirms that at 1:11 A.M., he attempted to contact Mr. Munroe again on behalf of the accused. He does not know or he cannot recall the reason for the request to re-contact counsel. He left a message for Mr. Munroe at 1:11 A.M. At 1:27 A.M., the accused was charged with refusing to provide a breath sample before the accused had the opportunity to speak to his lawyer a second time.

Evidence of Constable Michael Gray:

P.C. Gray is a member of the Ontario Provincial Police, Leamington detachment, and a qualified breath technician capable of taking samples with a breathalyser unit. On August 11, 2013, at approximately 11:26 P.M., he was called to attend the hospital in Leamington to receive a breath sample from the accused using a portable breath unit. He arrived at the hospital at 11:30 P.M. and met with staff and prepared the breathalyser unit to receive a sample. He initially deposed that the machine was ready to go at 12:15 A.M.

P.C. Gray initially met with Mr. McCormick while he was strapped to a backboard and in a private treatment room surrounded by paramedics and nurses. P.C. Mannina, who was also in the room, gave him a brief overview of the events and they both left the room while the accused received medical attention. Specifically, P.C. Mannina advised him there was a crash on Pelee Island, alcohol was suspected, and the accused wanted to speak with counsel.

At one A.M., P.C. Gray had a casual conversation with Mr. McCormick to explain the nature of a breathalyser and to determine if he would provide a breath sample for analysis. During the casual encounter, Mr. McCormick told him that he had been advised by his lawyer not to partake in a breath test and that he would not provide a sample. P.C. Gray understood that Mr. McCormick had already spoken to his lawyer by this point in time. He states that during their casual conversation, he asked Mr. McCormick if he would provide a breath sample five different times and on each occasion Mr. McCormick said no.

During the course of their conversation, Dr. Phipps, the attending physician, treated Mr. McCormick’s knee injury. P.C. Gray remained in the room. On P.C. Gray’s inquiry, Dr. Phipps advised that Mr. McCormick was medically able to provide a breath sample. P.C. Gray then officially requested the sample and Mr. McCormick refused again, that being his sixth refusal. P.C. Gray advised Mr. McCormick that it was an offence to refuse to provide a sample and refusing to provide a sample had the same legal effect as blowing over .08 and that the penalties could be the same; therefore, it was in his best interest to provide a sample. Mr. McCormick refused again, stating that his refusal was because of the legal advice he was provided. At 1:27 A.M., P.C. Gray arrested Mr. McCormick for failure to provide a breath sample.

In terms of indicia of impairment, P.C. Gray testified that Mr. McCormick presented with a strong odour of alcohol on his breath and had bloodshot eyes. He did not observe the accused’s gait. Mr. McCormick appeared to have been involved in a significant collision. His clothes were ripped, dirty and bloodstained, and he had a laceration on his head. P.C. Gray was not aware that the driver’s side airbag deployed in the crash. He did not make any inquiries to determine if Mr. McCormick suffered a head injury in the accident but, in his view, Mr. McCormick did not appear to have any cognitive issues.

When P.C. Mannina provided him with his grounds, he advised him of the odour of alcohol on the accused’s breath and that his eyes were red and glossy but said nothing about bloodshot eyes. P.C. Gray’s notes reflect that the accused was talking normally, breathing normally and in no medical distress.

In cross-examination, P.C. Gray confirms that he first met with Mr. McCormick at approximately one A.M. on August 12, 2013. He arrived at the hospital prior to Mr. McCormick’s arrival there and started setting up the breathalyser in the room where Mr. McCormick was ultimately to be brought for treatment. P.C. Gray is aware of the importance of taking accurate, contemporaneous notes. Despite that, he concedes that he did not note the presence of a strong odour of alcohol on the accused’s breath or the accused’s bloodshot eyes in either his notes that he made on August 12, 2013 or in the related alcohol influence report he prepared that day. He made no inquiries to determine whether the accused was provided with any medication or narcotics that may have affected him prior to his initial interaction with the accused.

P.C. Gray agrees that in order to receive a breath sample, the breathalyser unit must undergo a diagnostic check and a calibration check. The alcohol influence report indicates that both checks were completed at 1:43 A.M., 16 minutes after the accused was arrested for refusing to provide a sample. P.C. Gray states that the accused’s refusal came early in the process.

From talking to P.C. Mannina before his interaction with the accused, P.C. Gray was aware that approximately four hours had elapsed between the time the accused was provided with his right to counsel and the time that counsel was contacted, and he knew that the breath demand was made at 8:52 P.M. P.C. Gray did not personally do anything to facilitate the accused’s contact with counsel at any time.

In P.C. Gray’s view, the accused did not seem confused about the breath demand process during their initial casual conversation. Instead, he was adamant that he would not provide a sample. His notes record that the accused indicated on five different occasions that he “wanted to provide a sample, but his lawyer told him not to do so.” According to P.C. Gray, it never became clear to him that the accused wanted to talk to his lawyer a second time. However, he does not dispute that P.C. Mannina attempted to contact Mr. Munroe again at 1:11 A.M. He also agrees that P.C. Mannina’s efforts in that regard would have been the result of things that the accused said to P.C. Gray between one A.M. and 1:11 A.M. Ultimately, he states he does not know why P.C. Mannina attempted to contact the accused’s counsel again at 1:11 A.M.

P.C. Gray states that he knew there would be a refusal to the formal breath demand before he made it because of the content of the casual conversation with Mr. McCormick. In response to a suggestion that the accused told him “My lawyer said not to give you anything,” P.C. Gray states: “He said, ‘I’m not blowing.’” He agrees that his notes, as recorded, do not attribute those specific words to the accused. He did not record verbatim the words the accused used to express his refusal. The phrase “I’m not blowing” is merely his interpretation of what Mr. McCormick said.

There is a notation in P.C. Gray’s book which reads: “Advised by lawyer Kirk Munroe not to provide anything including sample.” Again, P.C. Gray agrees this is not a verbatim quote but rather his interpretation of what the accused said. He concedes that he questioned whether the statement, as recorded, was an accurate description of the advice the accused actually received from his lawyer.

P.C. Gray knew that Mr. McCormick had not talked to his lawyer a second time when he charged him with fail to provide a sample at 1:27 A.M. P.C. Gray recalls advising P.C. Mannina that “This is going to be a refuse” between 1:05 A.M. and 1:06 A.M. He states that P.C. Mannina was at the nurses’ station when he told him this.

Finally, P.C. Gray states he had no trouble communicating with Mr. McCormick. He also states that had the accused stated he wanted to talk to his lawyer again, he would have allowed him to use the hospital phone to do so and he would have left the room. He’s done that in the past.

Evidence on behalf of the accused:

Mr. McCormick testified in his own defence. He is 38 years old, grew up on Pelee Island and continues to reside there the majority of the time, living in a trailer behind his parents’ residence. He has a grade ten education and is a self-employed handyman, primarily working on Pelee Island.

Mr. McCormick has been diagnosed with a general anxiety disorder and has experienced symptoms of anxiety for the past ten years. He takes prescription anti-anxiety medication on a daily basis. His anxiety is exacerbated when he is in the presence of confrontational personalities and large crowds. His anxiety affects his ability to communicate. He becomes confused about what to say when his anxiety is heightened. For the past four to five years, a social worker has assisted him with life skill functions such as paying bills, getting his mail, interacting with his landlord when applicable and paying his rent.

In August of 2013, Mr. McCormick obtained the exclusive salvage rights for the demolition of a restaurant on Pelee Island. He hired his long-time friend Mr. Paton to assist him with the demolition work. They worked on the project together for a week prior to the accident. As the week progressed, Mr. Paton began to exhibit bizarre behaviour and started disappearing from the demolition site for hours at a time and, at times, in order to consume alcohol. Mr. McCormick states at approximately ten P.M. on August 10, 2013, he found Mr. Paton in his parents’ backyard by himself screaming at a building and engaging in other curious behaviour. Mr. McCormick told Mr. Paton that if his behaviour continued, Mr. Paton would have to leave the island on the first boat in the morning.

At approximately ten A.M. on August 11, 2013, Mr. McCormick and Mr. Paton started stripping wire for salvage at his parents’ house. They worked there until approximately two P.M. Earlier that day, Mr. McCormick cleaned up rental cottages owned by his parents and collected a number of empty beer bottles and cans as a result. Mr. McCormick observed Mr. Paton drinking beer that day while they worked; however, he did not consume any alcohol himself. He believes that if Mr. Paton saw him holding a beer can, it was one of the empties from the cabins.

At approximately two P.M., he used the pickup truck to return the empties to the local L.C.B.O. store. Mr. Paton was with him. The L.C.B.O. did not accept returns on Sundays. He purchased a six-pack of tall boy beer cans and left the store intending to go back to his parents’ home. As he was driving back to his parents’ residence, Mr. McCormick then suggested to Mr. Paton that they take a break and go to the Pelee Island Winery to discuss Mr. Paton leaving the island. Mr. McCormick maintains that he did not consume any alcohol before attending at the winery, where he parked in an overflow parking area with the front of his vehicle facing a small grass median.

On arrival, he and Mr. Paton each consumed one small sample of red wine. Mr. McCormick then purchased a 750 millilitre bottle of wine and took it to the wine garden area where they then sat at a picnic table. Mr. McCormick poured a glass of wine for each of them and explained to Mr. Paton that he could help him but for Mr. Paton being incapable of managing himself.

After approximately one hour of conversation, Mr. Paton left the picnic table area to find cigarettes and was gone for approximately 45 minutes. During that time, Mr. McCormick did not get up from the picnic table, he did not walk around the pavilion and he did not stumble around. He was wearing a red swimsuit at the time. He did not have a hat on.

When Mr. Paton returned, he was acting like a public nuisance and said he was going to go off. Winery staff members were approaching Mr. Paton. Mr. McCormick was concerned and he was becoming increasingly anxious because of Mr. Paton’s behaviour. He wanted to get Mr. Paton away from the winery. He stood up, patted Mr. Paton on the shoulder and told him that it was time to go. Mr. McCormick consumed a little more than one and one half glasses of red wine over the entire time they were at the winery. The alcohol he consumed was not affecting him and he had no difficulties with his speech.

He and Mr. Paton made their way across the parking lot and entered the pickup truck with Mr. McCormick on the driver’s side. Two young men came to his side of the pickup truck, and he spoke to them through the driver’s side window. Eventually, he got out of the vehicle and shook hands with one of them to demonstrate to him that everything was okay, and then he got back into the truck. During the conversation, one of the men said, “Are you sure you don’t want a cab?” At that point, Mr. Paton was ranting about his family’s Viking heritage while he bounced around the interior of the vehicle like a dog who wanted to stick his head out the window.

Based on Mr. Paton’s behaviour, he wanted to get out of the situation in the parking lot but he thought that there were people walking behind his vehicle. Mr. Paton’s animated movements blocked Mr. McCormick’s view of the rear view mirror. Since he couldn’t see beside him, he decided to drive over the grass median which he describes as rolled grass with a gradual slope on each side and about ten to 12 inches at its highest. He drove over the median for safety’s sake because someone might be behind him. He did not speed through the parking lot on his way out. He followed the path that led out of the winery and stopped before turning onto the road adjacent to the winery’s exit, with the intent to return to his parents’ home.

On the way back to his parents’ house, he passed the home of Pat and Rose Pierce and decided to stop and visit with them. Although he has known the Pierce family his entire life, he did not know them well enough to stop before August 11, 2013. He asserts that he stopped at their house because he wanted to control his passenger. Initially, he spoke to Pat Pierce in the driveway adjacent to the Pierce home. He told Mr. Pierce that his passenger was giving him a headache and asked Pat if he wanted company. Mr. Paton exited the truck soon afterwards. Eventually the accused, Mr. Paton and the Pierces sat outside talking. By this point Mr. Paton had calmed down, but Mr. McCormick’s anxiety was still a little heavy.

They stayed at the Pierce residence for almost two hours. During that time, Mr. Paton and the Pierces consumed alcohol. Mr. McCormick did not.

As he and Mr. Paton were leaving the Pierce residence at approximately 6:45 P.M., he heard Mr. Paton telling Mr. Pierce, “I don’t think Jacques will make it home. I’m gonna make sure Jacques doesn’t make it home.” Mr. Pierce replied, “If something happens, you guys weren’t here.” Then Mr. Paton gave Mr. McCormick a pepper he had received from Mrs. Pierce and told him it was sweet. When Mr. McCormick bit into it, he discovered that it was a burning hot pepper and he went to his truck to get some water. Along the way, he urinated on a tree in the Pierces’ yard. Then, he decided to get in his truck and drive a half mile down to the beach, leaving Mr. Paton at the Pierce residence. He did not tell anyone he was leaving.

When he got to the beach, he went swimming in the lake. A short time later, Rose Pierce dropped Mr. Paton off at the beach. Mr. McCormick tried to persuade Mr. Paton to come into the water and swim with him, but he declined. Mr. McCormick continued to swim for 20 to 25 minutes, then he returned to the truck with the intention of returning to his parents’ home with Mr. Paton.

On the way home, Mr. Paton began fighting with him in order to get a beer which was located in the rear seat area of the pickup truck cab. Until that point in time, Mr. McCormick was not aware that the beer from the L.C.B.O. had been moved from the truck bed to the truck cab. Mr. McCormick refused to let Mr. Paton drink beer in the truck. They continued to argue.

About 500 feet from the site of the eventual collision, Mr. McCormick stopped the vehicle to let Mr. Paton out because he was intent on consuming alcohol in the vehicle. Mr. Paton said he would get out, but he wanted to take the beer with him. Mr. McCormick told him it was a bad idea, so Mr. Paton stayed in the vehicle and Mr. McCormick resumed driving back to his parents’ house. Then Mr. Paton began waving a beer around and holding it away from Mr. McCormick with his outstretched arm.

As they approached the 90-degree bend in the road, Mr. Paton put his hand on the steering wheel and began to pull. Mr. McCormick pulled back. The accused believes he accelerated at this point because he was stiffening up. Mr. Paton let go of the steering wheel, and Mr. McCormick accelerated further to clear the turn which he had not yet begun to make. Suddenly Mr. Paton grabbed the steering wheel with both hands and pulled. Mr. McCormick saw a tree coming and felt like he was moving in slow motion. He reached out and tried to put both of his arms around the unbelted Mr. Paton’s torso in an effort to restrain him, but Mr. Paton slipped through his arms and hit the windshield after the truck hit the tree. The driver’s side airbag deployed on the collision.

Mr. McCormick explains that he intentionally accelerated into the 90-degree bend. He estimates he was travelling at 50 kilometres per hour prior to accelerating and was travelling approximately 60 kilometres an hour at the point of impact. He states that alcohol was not affecting his ability to drive at the time of the accident.

Mr. McCormick bumped his head and suffered a significant knee laceration as a result of the collision.

Sharon McCormick arrived at the scene almost immediately after the collision. Mr. McCormick was still in the vehicle. He vaguely remembers having a conversation with her. She asked if they needed help or if they wanted her to call the police. He told her that they required an ambulance and that he lived around the corner.

After the accident, Mr. Paton was fading in and out of consciousness. Mr. McCormick exited the vehicle and tried to keep Mr. Paton conscious by continuously slapping him. Eventually he pulled Mr. Paton out of the vehicle because he thought it would help him stay awake. He vaguely remembers Mr. McCormick returning to the scene, although he does not recall her telling him to lay Mr. Paton down or to stop slapping him. After he dragged Mr. Paton out of the vehicle, he held him upright for quite a good while and said “Give us a hug” because he thought it might help him maintain consciousness.

Eventually, the police arrived and he was questioned. He told police that Mr. Paton was fighting with him. One of the officers said they considered Mr. Paton a victim. He recalls being arrested while on a backboard and vaguely recalls a breath demand at the time. When asked if he wanted to contact a lawyer, he said: “Yes. Kirk Munroe.” He wanted to talk to his lawyer as soon as possible.

He was transported from the scene by ambulance to an unspecified location. He does not recall attending at the medical base on Pelee Island that night, although he had been to the base in the past for routine check-ups. He believes there is a telephone in the waiting room there as well as a reception area, medical offices and examination rooms on the first floor. He does recall attending the airport and being airlifted off Pelee Island. He believes there is a telephone located in the building at the airport.

In contrast to the evidence given by P.C. Mannina, Mr. McCormick indicates that there is stable cell phone reception on Pelee Island except for two specific spots close to his parents’ house, which is not near the medical base or the airport.

Mr. McCormick was eventually taken to hospital in Leamington for treatment. Once at the hospital, he was able to speak with Mr. Munroe in a patient room while he was strapped to a backboard. He believes a nurse handed him the phone. He talked to Mr. Munroe from 12:17 to 12:21 A.M. He told Mr. Munroe that he was involved in an accident and that the police were investigating. He believes that Mr. Munroe told him “not to give them anything.” He was in pain at the time he had this conversation, and his anxiety had progressively increased throughout the night. At the time he spoke to Mr. Munroe, he understood that the police would ask him to give a breath sample, but by the time his consultation was finished he thought that he was not supposed to give the police anything.

Once the call was finished, medical staff returned to his room. Then P.C. Gray entered the room and asked if he would give a breath sample. Mr. McCormick stated “I want to confirm if that’s okay with Mr. Munroe,” because he was under the impression that he had been advised not to give them anything. He believes he asked P.C. Gray if he could speak with Mr. Munroe again. At that point a doctor came into the room and he was taken for a CT scan, then he was returned to his room and given some papers.

Mr. McCormick denies that he told P.C. Gray “I’m not blowing.” He states that he wanted to talk to Mr. Munroe again because he wanted to confirm he was not to give them anything. He states that if Mr. Munroe had advised him that he had to provide a breath sample, he would have done so.

Finally, Mr. McCormick is steadfast in his assertion that he never felt the effects of the alcohol he consumed that day, which was limited to one and a half glasses of wine at the winery.

In cross-examination, Mr. McCormick agrees that he was convicted of impaired driving in 2002 and aggravated assault in 2005. On issues relating to his narrative he states that he first developed concerns about Mr. Paton’s consumption of alcohol in August of 2013, about three or four days after Mr. Paton arrived on the island. He was aware of Mr. Paton’s ongoing struggle with alcohol and wanted to help him. He was concerned about Mr. Paton staying on his parents’ property because he thought he might get drunk or loud, and there was a potential for conflict.

His concerns increased on Mr. Paton’s fourth day on the job when he found Mr. Paton consuming alcohol in a wet crawl space underneath the building that was being demolished. He scolded Mr. Paton and told him that he could not drink on the property. Mr. Paton ignored him.

As the week progressed, Mr. McCormick became more concerned about Mr. Paton’s use of alcohol but didn’t say anything to him about it until the night of Saturday, August 10^th when he discovered Mr. Paton hollering in his parents’ backyard. At that time, despite his bizarre behaviour, he did not feel Mr. Paton posed a risk to his parents’ safety.

Although Mr. McCormick was becoming increasingly concerned about Mr. Paton’s alcohol consumption as the week went on, he’s pretty sure that during the course of the week he had to purchase alcohol for Mr. Paton because he was erratic. He felt that if he did not provide Mr. Paton with alcohol, Mr. Paton would get into something. He was trying as gently as possible to get Mr. Paton to leave the island, and he did this by buying him alcohol.

On August 11, 2013, Mr. McCormick was concerned because Mr. Paton started drinking in the morning. Before lunch, he told Mr. Paton that since there was no work left to be done at the demolition site, with the only remaining work being the wire stripping, he should return to the mainland that day on the four P.M. boat. This was not the first discussion he had with Mr. Paton about leaving the island that week. Each time he raised the issue throughout the week it was because Mr. Paton was drinking and he was concerned about his alcohol consumption.

Mr. McCormick then took Mr. Paton to the L.C.B.O. store to return empties he collected from the rental cottages. On the way to the L.C.B.O., he advised Mr. Paton that there could be a good opportunity for him if he could self-maintain, by which he meant stop drinking. He concedes that he provided Mr. Paton with this counsel while en route to a liquor store where he ultimately bought alcohol for Mr. Paton. He agrees in hindsight that did not make a lot of sense, but he did not want to leave Mr. Paton alone at his parents’ house. He then told Mr. Paton that the ferry boat left at four P.M. and he should go home for a couple of days to see his children. Mr. Paton wanted to stay on the island until he was paid for his work.

The L.C.B.O. did not accept empties on Sundays, so he opted to enter and purchase a six-pack of beer which he placed in the bed and not the cab of the pickup truck. After they left the L.C.B.O., Mr. McCormick was still trying to convince Mr. Paton to leave the island that day. He planned to return to his parents’ house, but when he was within a two to three minute drive away from the Pelee Island Winery he decided to stop there in order to have a break and continue his efforts to convince Mr. Paton to leave the island. Mr. McCormick reasoned that it was a good idea to bring Mr. Paton to the winery, even though alcohol was served there, because there would be other people around when they continued their discussion and he was trying to figure out a way to deal with Mr. Paton’s aggressive personality.

He acknowledges that he was aware of Mr. Paton’s personality well before August 11, 2013 and had never figured out how to deal with him. He felt that he had no other option other than to bring Mr. Paton to the winery even though Mr. Paton’s aggressive personality and a large crowd at the winery both would exacerbate his anxiety symptoms. The only other option he felt he had was to bring Mr. Paton to the police station. He did not feel comfortable bringing Mr. Paton back to his parents’ house based on the howling incident the night before. He felt Mr. Paton was causing his parents mental anguish.

Mr. McCormick did not drive over the grass median as he entered the winery parking lot and he agrees that it is obvious that it was not meant to be driven over. While they were in the winery’s picnic area, Mr. Paton consumed his wine at a faster rate than Mr. McCormick consumed his. While he was concerned about Mr. Paton’s rate of consumption, he did not report this concern to anyone. Mr. McCormick began to dump his wine out on the grass. Despite his concerns, he did not leave the winery without Mr. Paton because he felt whatever trouble Mr. Paton would cause after he left would reflect negatively on him and harm his reputation.

While at the winery, he talked to Mr. Paton about leaving Pelee Island that day and about Mr. Paton’s alcohol issue for an hour to an hour and a half before Mr. Paton walked away to find cigarettes. He specifically told Mr. Paton that he had problems with alcohol and there would be a greater potential for him to get more work if he didn’t drink. He also told Mr. Paton that he didn’t think that Mr. Paton was disciplined enough to avoid alcohol. He agrees that he gave Mr. Paton all of this advice at the same time that he was supplying him with alcohol. Mr. McCormick explains that he purchased the bottle of wine to avoid being perceived as loitering or stealing a spot at a picnic table. He was aware of other locations on the island, which did not serve alcohol, where he could have had the same conversation with Mr. Paton.

After Mr. Paton returned from his 45-minute cigarette related absence, Mr. McCormick approached him, tapped him on the shoulder and said, “Let’s go. We’re leaving.” Mr. Paton became confrontational and grabbed but did not push Mr. McCormick. They made their way to the parking lot shortly thereafter.

Mr. McCormick was not wearing a hat at the winery. Neither was Mr. Paton. He agrees that there was a hat on his gun rack in his pickup truck, but he states that it would not have fit on his head. He originally stated that there were no other hats in his truck. However, post-accident police photographs of the interior of the vehicle evidenced that there were three other hats in the pickup truck, a toque a two baseball caps, but not a Scottish cap. Mr. McCormick didn’t recognize any of the hats in the photos and said they were not his. He loaned his truck out about a month before, but he thought it was unlikely that anyone else left items in it.

Once Mr. McCormick and Mr. Paton were in the truck in the parking lot, two winery employees approached him and told him they were concerned about him driving. Mr. McCormick told them “It’s okay,” and advised them that he knew people who worked at the winery in order to get them into a comfort zone. He told them he had not been drinking; however, that suggestion is not consistent with the evidence that he consumed one and a half glasses of wine. He introduced himself to the employees and shook one of their hands. They asked him if he wanted a cab, which surprised him because he already said he hadn’t been drinking.

He did not drive over the grass median because he was drunk. As they were about to leave the parking lot, Mr. Paton was bouncing around in the truck, which increased Mr. McCormick’s anxiety. He attempted to leave the winery as quickly as possible so he drove forward over the berm. He did not reverse from his parked position because he thought there were people behind him; his truck has a large blind spot and he prefers to go forward.

Mr. McCormick indicates he stopped at the Pierce residence on the way back to his parents’ house because he was trying to get Mr. Paton, who was still bouncing around in the truck, to tame it down. Initially when asked, he could not offer an explanation as to why he sought out the Pierces’ assistance with Mr. Paton. Eventually, he stated that he thought if he brought more attention onto Mr. Paton it would help to settle him down.

When they arrived at the Pierce home, he told Mr. and Mrs. Pierce that he had a passenger who was giving him a headache, and Pat invited him to stay. They all sat down outside to have a conversation. Five minutes after they sat down, Mr. Paton went to the truck and got a beer. Mr. McCormick was concerned by that and told him, “Have that one and save the rest.” Mr. Paton eventually had another beer anyway.

Mr. McCormick acknowledges that at some point Mr. Pierce was concerned about liability and stated: “If something happens, don’t say you were here.” Mr. Paton said, “Don’t worry. I’ll say we were at the winery because they have more insurance.” Mr. McCormick assured Mr. Pierce that he was okay to drive.

Mr. McCormick was frightened by Mr. Paton’s suggestion that he didn’t think that Jacques would make it home that night because it implied that Mr. Paton was going to cause an accident or cause other harm to him. He asked Mr. Paton what he meant by that comment and did not receive a reply. Instead, Mr. Paton went to get the pepper. Mr. McCormick decided to urinate on the Pierces’ tree because he had never been in their house before so it didn’t occur to him to ask if he could use their bathroom. After biting the hot pepper, Mr. McCormick drove off on his own without telling anyone where he was going, leaving Mr. Paton at the Pierce residence. Despite Mr. Paton’s behaviour, he did not have any concerns for the Pierces’ safety because he thought that Mr. Pierce would be stern enough to put Mr. Paton in his place. Mr. McCormick left the Pierce house a minute or two after Mr. Paton said he was going to make sure Jacques didn’t make it home that night.

After Rose Pierce brought Mr. Paton to the beach, Mr. McCormick swam for another 25 minutes to half an hour. He encouraged Mr. Paton to join him in the water because he thought Mr. Paton needed refreshing and the water would help sober him up.

After his swim, and while driving back to his parents’ house, he was forced to stop the pickup because Mr. Paton was acting wild and wanted to drink a beer in the truck. He told Mr. Paton that he couldn’t do that. He blocked Mr. Paton from getting a beer from the rear portion of the truck’s cab. Mr. Paton said he would walk back to the McCormick home if he had a beer. The accused wouldn’t give him one because he didn’t want Mr. Paton to get picked up by the police for having an open beer in his hand. The stop lasted less than a minute, during which time Mr. Paton got out of the truck and then got back in.

Shortly after that, Mr. Paton grabbed the wheel for the first time. Mr. McCormick turned the wheel the other way and Mr. Paton let go. At that point Mr. McCormick felt he had control of the vehicle. Two seconds later, Mr. Paton grabbed the wheel with two hands. After Mr. Paton grabbed the wheel the second time, Mr. McCormick saw the vehicle approaching a tree and released his own hands from the wheel and tried to wrap his arms around Mr. Paton.

Mr. McCormick explains that he did not apply the brake when Mr. Paton was grabbing the steering wheel because it’s dangerous to brake on a corner since it could cause a skid like being on ice. Eventually, he conceded that he was not going that fast and braking would have been a reasonable course of action to engage in when he and Mr. Paton fought for control of the steering wheel. He then added that he did not have time to brake when Mr. Paton was waving the beer around and he does not know if he could have slowed down before impact. He agrees that reducing a vehicle’s speed generally reduces the potential for danger. Mr. McCormick denies that he made up his version of the accident.

With respect to post-accident events, Mr. McCormick is surprised that Ms. McCormick testifies that he said “No police” when she asked if she should call the police. He was aware that the accident would have to be reported to police, but when she arrived at the scene he wanted an ambulance as quickly as possible. He states that when police arrived he said, “My passenger was fighting with me before the corner.” He was told that the police were treating Mr. Paton as the victim. Mr. McCormick was surprised that he was arrested, but he did not complain to the officers about being arrested. He agrees that he wanted medical attention for his own injuries and wanted to be taken off the island for medical treatment. He is aware that there is a land line phone at the medical base. The phone is near the waiting area. There are separate treatment rooms with walls. He is uncertain if the phones can reach into the treatment rooms.

On the issue of the alleged refusal to provide a sample, Mr. McCormick thought he understood the advice his counsel provided until he was asked to provide a breath sample. He was not confused about the nature of the breath demand because he had participated in one before. He was confused about the advice given to him. Based on his conversation with Mr. Munroe, Mr. McCormick believed that he was not to give the police anything and was not to tell them anything. He does not recall if he told Mr. Munroe that the police wanted him to provide a breath sample or blow into a breathalyser. He does not remember Mr. Munroe specifically advising him not to provide a breath sample or not to blow into a breathalyser. He does not know if he told Mr. Munroe that a breath demand had been made or if he even remembered P.C. Mannina’s demand from over three hours earlier when he spoke to counsel. He did tell Mr. Munroe that he had been charged with impaired driving.

Mr. McCormick denies that after talking to Mr. Munroe he understood that he had to provide a breath sample. He denies he told P.C. Gray “I’m not going to give you a sample because my lawyer told me not to.” He never told anyone that his lawyer advised him not to provide a sample.

He does agree that P.C. Gray advised him a number of times that if he did not provide a breath sample he would be arrested for refusing to provide one. However, he remained confused over the nature of the advice provided to him by Mr. Munroe and asked for an opportunity to call him back. He does not recall an official request for a breath sample ever being made to him while he was at the hospital, and he is surprised that P.C. Gray said that an official request was made. Mr. McCormick did not call Mr. Munroe after he was released from hospital.

Overall, Mr. McCormick acknowledges that he made poor judgment calls on August 11, 2013 as it relates to Mr. Paton. Mr. Paton’s behaviour became progressively worse throughout the day because he was drinking alcohol. Mr. Paton threatened him and caused him fear and anxiety but, other than going for a swim, he did nothing to remove himself from the situation. He reasons that he was trying to learn how to handle medication and anxiety at the same time and he did not know how to handle the situation with Mr. Paton.

He denied that alcohol had any affect on his ability to drive that day. He insists the collision was caused by Mr. Paton grabbing the steering wheel.

Finally, the report of Dr. Kelton:

In support of his defence, the accused has tendered a brief report in letter form from his family physician Dr. P.M. Kelton. In the report, Dr. Kelton expresses certain opinions. The Crown did not contest the admissibility of the report and accepted that Dr. Kelton possessed the necessary expertise to render the opinion set out therein. The Crown did not deem it necessary to have Dr. Kelton attend for the purpose of cross-examination. In general, Dr. Kelton indicates:

a) The accused has been a patient of Dr.

Kelton’s since 1984. He rarely attends the office.

b) The accused has a medical condition which

makes communication, understanding and comprehension more difficult than the average person.

c) The accused’s condition is difficult to

diagnose, but he suffers from generalized anxiety disorder, has a paranoid personality type, and in the past has had paranoid delusions involving co-workers resulting in loss of his job.

d) When speaking with someone who has an

aggressive personality or is confrontational, the accused will shut down. However, in the past he has become aggressive himself.

e) The accused often misinterprets comments,

actions and events involving others and develops a belief that the other person is out to get him.

f) The accused has undergone an extensive

psychological assessment, but the psychologist could not arrive at a firm diagnosis due to his evasiveness on testing and the noted paranoid interpretation of the events that the accused described. No evidence was adduced directly from the psychologist either in testimony or report form.

g) The accused was assessed by a psychiatric

nurse through Tele-Health in 2010. Dr. Kelton did not find that assessment helpful because, in his opinion, the nurse did not ask the right questions and did not take the time to see Jacques’ thought process develop.

The doctor’s evidence with respect to Mr. McCormick’s anxiety disorder is generally consistent with Mr. McCormick’s evidence. However, the content of the report does not speak to Mr. McCormick’s ability to engage in executive decision making functions other than to say that he tends to either withdraw or, in the past, become confrontational himself when met with what he perceives to be aggressive or confrontational personality types. The doctor discounted the psychiatric nurse’s assessment on the basis that she did not take the time to see the accused’s thought process develop, but he does not explain what he meant by that statement.

That concludes a summary of the evidence, so we’re going to take a break at this point and come back in about 15 minutes and we’ll begin with the disposition of count one. I will deal with the application in the course of the disposition of count two. Thank you.

R E C E S S

U P O N R E S U M I N G:

REGISTRAR: Court is now resumed. Please be seated.

THE COURT: I will move on to disposition of count one.

In order to find Mr. McCormick guilty of impaired operation of a motor vehicle causing bodily harm, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

1. The accused operated a motor vehicle;

2. That the accused intended to operate a motor

vehicle after he consumed alcohol;

3. The accused’s ability to operate a motor

vehicle was impaired by alcohol; and

4. The accused’s impaired ability to operate a

motor vehicle caused John Paton bodily harm.

If I find that the Crown has failed to prove any of those essential elements beyond a reasonable doubt, I must find Mr. McCormick not guilty of impaired operation of a motor vehicle causing bodily harm. However, if the Crown is able to prove the first three elements beyond a reasonable doubt but not the fourth, the accused may be found guilty of the lesser included offence of impaired operation of a motor vehicle. If I find that the Crown has proven all the essential elements that are above, I must find Mr. McCormick guilty on count one as charged. It is the Crown’s obligation to prove each of the essential elements beyond a reasonable doubt. Mr. McCormick does not need to prove anything. He enjoys the presumption of innocence unless and until the Crown has discharged its obligation to prove the essential elements of the offence beyond a reasonable doubt.

The first two elements of the offence are not in dispute. Mr. McCormick was clearly operating a motor vehicle at the time of the collision, and his evidence indicates that he did so intentionally after consuming alcohol at the winery that day.

I will now turn to the disputed issue of whether the accused’s ability to operate the vehicle was impaired by alcohol.

It is not an offence to operate a motor vehicle after drinking alcohol. It is an offence to operate a motor vehicle if the consumption of alcohol impairs a person’s ability to operate the motor vehicle. The critical time is the time of driving, not when the alcohol was consumed or after the driving was over. Operating a motor vehicle requires a person to exercise both physical and mental ability. Physical ability refers to the ability of the driver to perform normal driving functions in a proper and timely manner, such as steering, braking or reacting to changing circumstances and conditions. Mental ability has to do with perception, judgment and prompt and accurate assessment of existing or changing circumstances or conditions. The ability of a person to operate a motor vehicle is impaired by alcohol if, due to the consumption of alcohol, the person drove with less ability than an ordinary careful driver in similar circumstances.

Impairment is a matter of degree for which there is no specific test or precise measure. It may be slight, it may be great, or it may be somewhere in between. It may involve the physical or mental ability to operate a motor vehicle, or some of both.

Impaired operation of a motor vehicle is established by proof of any degree of impairment ranging from slight to great. The Crown does not have to prove a marked departure from normal driving behaviour or even improper driving in order to establish impairment. A person’s ability to drive may be impaired by alcohol even though there is no evidence of improper driving conduct. On the other hand, people may drive poorly without being impaired. The issue is not whether Mr. McCormick drove poorly. The issue is whether his ability to operate a motor vehicle was impaired by alcohol. Impairment is a question of fact. In order to find Mr. McCormick guilty of impaired operation, I must be satisfied beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol. If the evidence establishes any degree of impairment, the offence of impaired operation has been made out. If the evidence of impairment is such that I am left with a reasonable doubt on the issue, Mr. McCormick must be acquitted.

In assessing the evidence of impairment, I ought not to look at each item of evidence in isolation but must look at the totality of the evidence to determine whether the Crown has proved the impairment alleged beyond a reasonable doubt. It may be that some of the alleged indicia of impairment have other possible explanations. I must determine, on the whole of the evidence, whether the Crown has established impairment in accordance with the requisite standard of proof.

Intoxication and impairment are questions of fact and conditions that do not require medical expertise to identify. Ordinarily, people with ordinary experience are able to know, as a matter of fact, that someone is too impaired to perform certain tasks such as a driving a car.

In deciding whether Mr. McCormick’s ability to operate a motor vehicle was impaired by alcohol, I must consider the cumulative effect of the evidence of impairment, if any, including evidence with respect to the amount of alcohol consumed by Mr. McCormick, the actual manner in which he drove, any physical signs of impairment he displayed, his general conduct and appearance, and the presence or absence of the smell of alcohol on his breath. To be clear, while the presence of the odour of alcohol on an accused’s breath is evidence which may be considered in determining whether the accused’s ability to drive was impaired, the intensity or strength of the odour does not inform the issue.

With those principles in mind, I will now consider the evidence concerning the alleged impairment of Mr. McCormick’s ability to operate a vehicle and whether the Crown has demonstrated that essential element of the offence beyond a reasonable doubt. In doing so, I must consider the totality of the evidence and not examine it on a piecemeal basis. If there remains a reasonable doubt as to the accused’s guilt after considering all of the evidence, it must be resolved in favour of the accused. In the context of all of the admissible evidence, even if I am not left in doubt by the accused’s evidence or any other exculpatory evidence, including any additional evidence adduced by the accused, I must determine whether on the basis of the evidence I do accept I am satisfied that the essential elements of the offence have been proven beyond a reasonable doubt. It is not an issue of preferring one party’s evidence over the other. It is carefully scrutinizing all the evidence to reach findings of fact.

I begin with the evidence of the accused, recognizing that he does not carry the burden of proof on any issue in count one. Mr. McCormick testifies that, prior to the collision, his alcohol consumption was limited to one and one half glasses of wine and a sample glass of merlot consumed at the winery approximately four hours before the accident. He also states that his ability to operative his motor vehicle was not impaired by alcohol at any time on August 11, 2013. Clearly, if I accept Mr. McCormick’s evidence, he is entitled to an acquittal on count one. Even if I do not accept it, if his evidence, when considered with the totality of the evidence, leaves me with a reasonable doubt, he is entitled to be acquitted.

The defence submits that Mr. McCormick is a believable and reliable witness and urges me to accept his evidence in general, and his evidence of impairment specifically. The defence posits that there are aspects of Mr. McCormick’s evidence that lend support to his credibility, specifically:

a) He gave many details during his narrative

account of the events of the day, such as his observations of certain rocks along the roadway as he drove.

b) He made admissions in his evidence which

would not have reasonably been made if he was fabricating his evidence. For example, he admitted that neither he nor Mr. Paton were wearing a hat at the winery. He did not tailor his evidence to implicate Mr. Paton as the person that Janet K. deposes she saw stumbling around by suggesting that Mr. Paton was wearing a hat, and he did not depose that he observed Mr. Paton stumbling around himself.

c) Aspects of Mr. McCormick’s evidence are

supported by other evidence adduced at trial. Examples are said to include: the police photographs that depict cases of empty bottles in the bed of the pickup truck, consistent with Mr. McCormick’s evidence about the purpose of the L.C.B.O. attendance; Mr. Paton’s confirmation that he could become aggressive when he consumes alcohol; and Mr. Paton’s hazy memory of offering Mr. McCormick a pepper, which confirms a narrative element of their attendance at the Pierce residence.

Finally, the defence submits that Mr. McCormick should be believed because he is an uneducated and unsophisticated individual who struggles with an anxiety condition and requires social work assistance for basic life skills. In the defence’s view, Mr. McCormick is not sophisticated enough to give the evidence that he did with the level of detail that he provided without it being truthful. While his approach to dealing with Mr. Paton seems illogical, it is consistent with the psychosocial challenges he faces.

In accordance with R. v. W.(D.), a 1991 decision of the Supreme Court of Canada, if I accept the accused’s evidence that his ability to operate a vehicle was not impaired by alcohol at the relevant time, I must find him not guilty. If I do not accept his evidence but any exculpatory evidence, including his evidence, leaves me with a reasonable doubt on the impaired element of the offence, I must find him not guilty. If the exculpatory evidence does not leave me with a reasonable doubt on the impaired element, Mr. McCormick is entitled to be found not guilty unless I am satisfied that the Crown has established beyond a reasonable doubt, on the evidence that I do accept, that Mr. McCormick’s ability to operate a motor vehicle was impaired by alcohol at the time that he operated the vehicle.

If the Crown establishes the impaired element to the requisite standard, I must go on to determine, in the context of the evidence as a whole and in accordance with the principles set out in W.(D.), whether the Crown has established beyond a reasonable doubt that Mr. McCormick’s impaired ability to operate a motor vehicle caused bodily harm to Mr. Paton, before a finding of guilt with respect to count one can be made.

In approaching Mr. McCormick’s evidence, I have placed little weight on his demeanour while testifying, particularly in light of the evidence of his anxiety issues and related symptoms. I have placed significant weight on the content of his evidence, which causes me concern with respect to his ability to act as an honest and accurate historian of the events of August 11, 2013 up to the point of the collision.

I have purposely recounted Mr. McCormick’s evidence in detail to illustrate what I find to be significant internal inconsistencies in his testimony about his actions and his stated reasons for his actions that day. In my view, the following list of non-exhaustive examples taken from his evidence illustrates the point:

1. Mr. McCormick provided advice to Mr. Paton on

how to better his life while simultaneously engaging in conduct that was the antithesis of the advice he was providing. Specifically, while counselling Mr. Paton against drinking alcohol and advising him of the expansive opportunities that would be available to him if he did so, he purchased alcohol for Mr. Paton’s consumption at the L.C.B.O. In cross-examination Mr. McCormick conceded that his course of conduct doesn’t make any sense. While still counselling Mr. Paton against drinking alcohol, he then brought him to the winery and supplied him with more alcohol, and I will echo the sentiment of Mr. McCormick’s words - it doesn’t make much sense.

2. On a whim, he chose to continue a contentious

conversation with Mr. Paton in an anxiety inducing setting. Mr. McCormick’s anxiety is exacerbated by large crowds and interactions with aggressive personalities. Given those stressors, it’s difficult to understand his decision to bring Mr. Paton to the winery in order to continue their serious discussion about Mr. Paton leaving the island. The winery was crowded. While there, Mr. McCormick supplied Mr. Paton with alcohol knowing that he was prone to confrontation and aggression when he drinks. It seems clear that Mr. McCormick’s level of anxiety was destined to increase as a result of his choice of venue and his conduct once there. His decision to attend the winery at all is even more difficult to comprehend given his evidence that he was aware of other places on the island, that don’t serve alcohol, where he could have taken Mr. Paton to continue their discussion. It doesn’t make much sense.

3. Despite opportunities to do so, Mr. McCormick

didn’t separate himself from Mr. Paton when he became confrontational at the winery. Despite Mr. Paton becoming physically aggressive with Mr. McCormick at the winery, which increased his anxiety, he decided not to leave Mr. Paton there because he was concerned about his own reputation being tarnished, something I’ll discuss momentarily. Instead, he ushered Mr. Paton into his pickup truck in the parking lot where Mr. Paton was bouncing around and acting like a public nuisance and concerning Mr. McCormick to the point that he wanted to get away from him. However, when winery employees offered to call a cab which could have been used to transport Mr. Paton away from the winery, Mr. McCormick declined. It doesn’t make much sense.

4. Mr. McCormick’s stated concern about his

reputation on Pelee Island appeared to be situational. Despite his escalating concerns over Mr. Paton’s behaviour, Mr. McCormick felt he couldn’t leave the winery without him because Mr. Paton might have done something that would negatively affect Mr. McCormick’s own reputation. It is difficult to reconcile his stated concern in that regard with his initial decision to bring Mr. Paton, who was already intoxicated, to a crowded winery. In his condition, Mr. Paton was prone to aggression and confrontation. It appears that by bringing Mr. Paton, in that condition, into a setting where alcohol was served, Mr. McCormick invited the very reputation harming conduct that caused him concern. By supplying Mr. Paton with alcohol, Mr. McCormick increased the potential that Mr. Paton would engage in reputation harming conduct. It is also difficult to reconcile Mr. McCormick’s stated reputational concern with his failure to monitor or even attempt to locate Mr. Paton in the 45 minutes that he was gone from the table. It is difficult to accept that Mr. McCormick held a legitimate concern about Mr. Paton’s reputation harming potential when he responded to Mr. Paton’s prolonged absence by simply sitting at a picnic table for 45 minutes. Finally, while he was at the Pierce residence, Mr. McCormick decided to urinate on one of their trees instead of using the restroom, without apparent concern about how that action might have impacted his reputation. All of it doesn’t make much sense.

5. Mr. McCormick’s explanation for bringing Mr.

Paton to the winery is inconsistent with his intended destination when they left that location. Mr. McCormick says that after leaving the L.C.B.O. he suddenly decided to bring Mr. Paton to the winery because he didn’t want Mr. Paton to be around his parents, because of his bizarre behaviour. Yet, he then left the winery with the intention of returning to his parents’ residence, together with Mr. Paton, which would have achieved the very result he wanted to avoid by attending at the winery - Mr. Paton around his parents - but now with a more intoxicated and aggressive Mr. Paton to contend with. It doesn’t make much sense.

6. His explanation for attending at the Pierce

residence is puzzling. From his evidence, I cannot gain a clear appreciation why Mr. McCormick chose to stop at the Pierce residence to help control his passenger. He knew the family, but had never attended at their home before he decided to make an unannounced stop to request their assistance with an intoxicated and potentially confrontational and aggressive Mr. Paton. Initially, Mr. McCormick couldn’t explain it and ultimately stated that it was to bring more attention on Mr. Paton to settle him down, which is difficult to reconcile with his assertion that he left the winery, in part, because there was too much attention on Mr. Paton from winery employees. Mr. McCormick knows Pelee Island well, and he concedes that there were places he could have brought Mr. Paton on the island after they left the winery other than his parents’ residence. That observation, combined with his reputational concerns and the nature of his relationship with the Pierces, makes it very difficult for me to comprehend his decision to stop at their home for the reason he stated. It doesn’t make much sense.

7. His stated fear that Mr. Paton intended to

harm him is inconsistent with Mr. McCormick’s subsequent conduct. Mr. McCormick says he abandoned Mr. Paton at the Pierce residence because Mr. Paton made a threatening comment about him and he was frightened by it. A short time later, Mr. Paton, the very person he says he feared, was delivered to the location where Mr. McCormick had retreated to go swimming. Instead of immediately leaving the beach area and the person he feared or at the very least avoiding Mr. Paton, Mr. McCormick invited Mr. Paton to join him for a swim. It’s difficult to reconcile that conduct with Mr. McCormick’s evidence that he feared Mr. Paton to such an extent that he abandoned him without notice at the Pierce home. Once he was done swimming, Mr. McCormick then allowed Mr. Paton into his vehicle, another action that’s difficult to reconcile with his stated fear, and set out to return to his parents’ house, where he had otherwise avoided bringing Mr. Paton all afternoon. It doesn’t make much sense.

Overall, Mr. McCormick’s evidence does not offer a cogent and consistent rationale for the various decisions he made on August 11, 2013, and he does not relate a believable narrative of the pre-collision events. His stated motivation, which include his increasing concern about Mr. Paton’s behaviour, his concern about returning to his parents’ house, his concern about his own reputation and his concern about the threat Mr. Paton posed to his safety, all seem to oscillate and ebb and flow in his evidence, as it suited his narrative purpose and particularly as he was pressed in cross-examination to explain the reasons for his stated actions that day.

The internal inconsistencies in Mr. McCormick’s evidence cannot be reconciled by resort to the evidence about the effects of his anxiety condition. Dr. Kelton indicates that Mr. McCormick has a yet to be fully diagnosed condition that includes an anxiety disorder with paranoid tendencies that affects his ability to communicate and potentially influences the manner in which he perceives and reacts to certain third party interaction. Dr. Kelton does not provide any evidence supporting the proposition that Mr. McCormick’s condition renders him prone to consistently engage in deliberate conduct that is patently contradictory to his stated purpose for engaging in that conduct. In short, I do not find Dr. Kelton’s letter evidences that Mr. McCormick suffers from a medical condition that can reasonably account for the puzzling course of conduct that he deposes he engaged in throughout the day on August 11, 2013. I also find it difficult to reconcile Dr. Kelton’s evidence that when Mr. McCormick is confronted with an aggressive personality he shuts down with Mr. McCormick’s evidence indicating that he took steps to remain engaged with Mr. Paton despite his aggressive behaviour at the winery and in the vehicle in the winery parking lot. He did not withdraw from him until hours later in order to go for a swim.

There are other aspects of Mr. McCormick’s evidence that impact my assessment of its truthfulness and accuracy, including:

1. Mr. McCormick had difficulty answering some

of the questions posed to him in cross-examination. For example, when initially asked, he could not provide an explanation for why he originally sought out the Pierces’ assistance with Mr. Paton and ultimately stated it was to bring more attention on Mr. Paton. On another occasion, when asked by the Crown whether he agreed or disagreed with the suggestion that Mr. Paton never grabbed the steering wheel, Mr. McCormick was silent for 25 seconds before stating: “I disagree.” When questioned about the delay in his response, the accused indicated he did not understand the question despite having answered a number of suggestion based questions previously posed by the Crown.

2. There are elements of Mr. McCormick’s

evidence that are not consistent with the other evidence that I do accept and I have considered that evidence in the context of the totality of the evidence, including Mr. McCormick’s evidence, before I accepted it. For example, Mr. McCormick states while they were in the winery parking lot, Mr. Paton was ranting about his Viking heritage and bouncing around to the point that Mr. McCormick couldn’t see behind him through the use of the rear view mirror. However, Mr. Pearce and Mr. McEachern did not describe that type of behaviour from Mr. McCormick’s passenger. The thrust of their evidence is that Mr. McCormick’s passenger was in the vehicle during their entire discussion with Mr. McCormick and, apart from interjecting in the conversation a few times, the passenger was not observed to engage in any activity of note. I accept their evidence on the point. In my view, Mr. Paton’s vigorous conduct, as described by Mr. McCormick, is something that these witnesses would have noted if it happened. Instead, they observed the passenger sitting and occasionally talking. Mr. McCormick’s evidence about Mr. Paton’s conduct during his discussion with the winery employees is central to his explanation for driving over the berm.

3. There was at least one occasion when Mr.

McCormick could not provide any explanation for a demonstrated inaccuracy in his evidence. Specifically, Mr. McCormick deposed there was only one hat in his truck on August 11^th. When he was confronted with the pictures of the interior of the vehicle that evidenced three hats in the cab, Mr. McCormick’s only explanation is that he didn’t know about them and he didn’t know how they got there.

4. There are aspects of his evidence that I find

to be unbelievable on their face as a matter of logic and ordinary human experience. For example, I found Mr. McCormick’s evidence of his attempt to restrain Mr. Paton by releasing the wheel, lunging to his right side, wrapping his arms around Mr. Paton’s torso and locking his hands all in the one to two seconds before the truck collided with the tree to be unbelievable. In that regard, Mr. McCormick gave the following evidence, and this is from the transcript of the evidence of Jacques McCormick at pages 46 to 47, lines 29 through ten on the following page, with Ms. Pollock asking the questions:

“Question: Then what happened?

“Answer: Then at impact it’s – like, it’s still like slow motion. I see the tree coming. It was - probably only happened in a second, but he was still locked onto the wheel and he was pretty much gonna get thrown. It looked like he was gonna get thrown right through the windshield into this tree, so I did one of these. I locked my hands around him and he kind of slipped out of my hands and he – like, across the dash, kind of went right into the pillar that holds the – between the dash and the pillar there. He just seemed like he went right off the...

“Question: Okay.

“Answer: That’s my best explanation of it. I mean, you have one or two seconds of this all happening, so...”

In conjunction with that evidence, he

demonstrated a circular motion with his arms fully extended. He raised his left arm higher and brought it down towards his right arm and eventually locked the fingers of his hands together. I do not accept that the restraining movement he described and demonstrated could have been accomplished within one second of his initial observation of the tree.

In cross-examination, Mr. McCormick appeared to resile from this aspect of his narrative to some degree. When he was confronted with the suggestion that the seatbelt that he was wearing would have prevented him from doing anything to restrain Mr. Paton, Mr. McCormick stated, “It may have done, but I – that was all my efforts were to do and I don’t...” and his answer trailed off without any further elaboration. I find his evidence about restraining Mr. Paton immediately before the collision to be incredible and illustrative of the general nature of his narrative.

In addressing the defence’s remaining submissions about accepting Mr. McCormick’s evidence, I agree that Mr. McCormick provided details in certain portions of his evidence. However, I was struck by the lack of detail on critical elements of his narrative. For instance, on his own account he spent over two hours that day counselling Mr. Paton about leaving the island and the better opportunities that awaited him if he dealt with his alcohol abuse, and states he went to the winery to do so. However, Mr. McCormick provided very few details about this prolonged discussion or Mr. Paton’s response other than to identify the general topics they discussed and Mr. Paton’s indication that he wanted to stay on the island until he was paid.

With respect to the defence’s observation that Mr. McCormick made admissions in cross-examination and did not offer details designed to implicate Mr. Paton as the stumbling man observed by Janet K., I am not persuaded that Mr. McCormick’s evidence should be accepted because he refrained from taking the opportunity to fabricate certain self-serving evidence.

Finally, I agree with the defence that there are elements of Mr. McCormick’s evidence that are confirmed by independent evidence, including that he was at the winery, that he spoke with the employees in the parking lot, that he drove over the berm, that Mr. Paton somehow interacted with a pepper, and there were empty alcohol containers in his car which appeared to have been packaged for return. However, the confirmatory evidence tends to be on non-contentious or peripheral matters. The totality of the confirmatory evidence of isolated aspects of Mr. McCormick’s evidence is not of a character or of a magnitude sufficient to dispel my concerns about the accuracy and candour of Mr. McCormick’s evidence that arise from its inconsistent nature and its inability to withstand the scrutiny of logic.

For all of the reasons I have stated, I do not find Mr. McCormick’s evidence of the pre-collision events to be credible, and as a result I do not accept Mr. McCormick’s evidence that his ability to operate a motor vehicle was not impaired by alcohol at the time of the collision. As I have rejected Mr. McCormick’s evidence in that regard, it does not leave me with a reasonable doubt on the issue when I consider it in the context of the evidence as a whole. See R. v. Boucher 2005 SCC 72, [2005] SCC 72, 3 S.C.R. 499, at paragraph 29.

Further, I do not accept Mr. McCormick’s evidence about Mr. Paton grabbing the steering wheel twice or at all because I do not believe it. I have also considered that aspect of his evidence together with the totality of the evidence that I summarized at length at the beginning of these reasons, and I am not left with a reasonable doubt by his evidence as to whether Mr. Paton grabbed the steering wheel. I will explain why.

First, although Mr. Paton unequivocally denies that he grabbed the steering wheel, he is generally not a reliable witness. He acknowledges that his memory with respect to the events of August 11, 2013 is generally sketchy. He concedes that there are gaps in his memory about what occurred at the winery. His memory is affected if he consumes more than two to four alcoholic drinks and he consumed more than that on August 11^th, and he cannot recall the two and a half hour period of time that preceded the moments before the collision, which he attributes to his failing memory. His recall of the events immediately prior to the collision is somewhat better, and there are consistent elements between his account and Mr. McCormick’s narrative. Mr. Paton wanted a beer. Mr. McCormick said to wait. They argued or discussed it. Mr. Paton reached for a beer.

Mr. Paton concedes that as of August 2013 he was prone to become aggressive and confrontational when he consumed alcohol, and he has a dated record of engaging in assaultive conduct related to the consumption of alcohol with the last offence occurring more than half a decade before the incident. However, there is no direct evidence that when intoxicated Mr. Paton is, or was as of August 2013, prone to engage in conduct which would likely result in physical harm to himself, whether in isolation or as part of an effort to harm a third party, such as pulling hard on the steering wheel of a moving vehicle in which he was a passenger. On the evidence before me, I am unable to conclude that pulling hard on the steering wheel of a moving vehicle is conduct that is consistent with Mr. Paton’s propensity to become aggressive and confrontational.

I have also considered that Mr. Paton’s ongoing litigation against Mr. McCormick may have provided him with a motive to fabricate evidence that Mr. McCormick was at fault for the accident, in the event he was not otherwise at fault for the accident in fact. Despite the foregoing considerations, Mr. McCormick’s evidence does not leave me with a reasonable doubt about whether Mr. Paton grabbed the steering wheel. I do not find Mr. McCormick’s evidence credible in the main, including this aspect of it. In my view, his assertion about the wheel grab is even more dubious when it is considered in the context of the evidence about what he says he did in response. On his own evidence, he did not attempt to slow or stop the vehicle in response to the initial wheel grab once he regained control. Instead, he testifies that he reacted to Mr. Paton’s extreme and dangerous conduct by accelerating even further while he approached a 90-degree bend in the road. In my view, his stated conduct fails to accord with the preponderance of probabilities which a practical and informed person would recognize as reasonable in that place and in those circumstances. It does not make any sense.

On his own evidence, Mr. McCormick agrees braking would have been a reasonable reaction in the circumstances. His evidence about what he did in response to the wheel grab further dilutes the credibility of his account. It is unbelievable.

As I do not accept Mr. McCormick’s evidence that Mr. Paton grabbed the steering wheel and there is no other evidence that indicates that he did, I am not left with a reasonable doubt on the issue.

Since I do not accept Mr. McCormick’s evidence that his ability to operate a motor vehicle was not impaired by alcohol and the defence evidence does not leave me with a reasonable doubt in that regard when considered with the whole of the evidence, I must consider whether the Crown has established that fact beyond a reasonable doubt on the evidence that I do accept.

Turning to the other evidence of impairment, the Crown prosecutes counts one on the basis of Mr. McCormick’s alleged conduct in relation to the collision with the tree and the ensuing injuries to Mr. Paton. Specifically, the Crown does not submit that the evidence as adduced supports a finding that Mr. McCormick is guilty of the lesser included offence of impaired operation, based on an allegation that his ability to drive was impaired by alcohol when he operated a motor vehicle at the winery. As I understand it, that evidence was adduced as narrative and to further the Crown’s submission that there were observations that were made at the winery that support an inference of impairment at the time of the collision. In that context, I will now consider whether the Crown has demonstrated that the accused’s ability to operate a motor vehicle was impaired at the time of the collision beyond a reasonable doubt.

Mr. McCormick admits that he consumed alcohol several hours before the collision and states his consumption was limited to one and a half glasses of wine. While I do not accept his evidence for the reasons I previous stated, there is no direct evidence that contradicts him on that point. Despite his initial assertion that Mr. McCormick purchased two bottles of wine at the winery, Mr. Paton ultimately concedes he only recalls one bottle for sure and he also concedes that he does not know the quantity of wine Mr. McCormick actually consumed. Although he saw Mr. McCormick holding a beer can while they worked at his parents’ house, he did not see him consume any beer. Owing to Mr. McCormick’s evidence with respect to collecting empties from the rental cabins, which is confirmed to some extent by police photographs of the content of his truck, I do not draw the inference that Mr. McCormick was consuming alcohol at his parents’ house because he was seen to hold a beer can. Finally, there is no evidence that Mr. Paton observed Mr. McCormick consume alcohol after they left the winery. His memory of that period of time is blank. There is no evidence that any of the witnesses who observed Mr. McCormick at the winery observed him to consume any alcohol. Ultimately, I find there is no credible or reliable evidence of the quantity of alcohol consumed by Mr. McCormick prior to the collision, but his consumption of some alcohol is admitted.

Turning to observed indicia of impairment, there are three distinct time periods when witnesses made observations of Mr. McCormick which led them to conclude that he was impaired, or possibly so - at the winery, at the accident scene, and at the hospital with P.C. Mannina making continual observations from the time he arrived at the accident scene up to his attendance at the Leamington Hospital.

With respect the winery, each of Janet K., Keenan McEachern and Doug Pearce testified they were concerned that the accused, while at the winery, was impaired or possibly impaired, in the case of Mr. McEachern, and that he intended to operate and did operate a motor vehicle while he was impaired. I accept that each of them honestly held that concern. Independent of one another, Janet K. on the one hand, and Mr. McEachern and Mr. Pearce, with the assistance of Ms. Bondy on the other, reported their concerns to police. In my view, their actions evidenced that each of them had an honestly held opinion that the accused was operating a motor vehicle while his ability to do so was impaired by alcohol, or possibly so, when he left the winery. Of course none of these witnesses made observations of the accused at or near the time of the collision.

There are reasons to question the reliability of aspects of the account of each of these witnesses. To begin with, as between them, their evidence varies significantly on some major points, including:

a) The duration of the conversation between Mr.

McCormick and winery employees in the parking lot:

Janet K. deposes the conversation lasted five to ten seconds. Mr. Pearce recalls the conversation lasted between ten and 15 minutes. Mr. McEachern states it lasted five minutes.

b) The nature of the accused’s driving as he

left the winery:

Each of these witnesses, together with the accused, confirmed the accused drove over the grass berm. However, Janet K. indicates the accused roared over the berm, roared through the parking lot at an excessive rate of speed, and ultimately entered the roadway adjacent to the winery without stopping when he was otherwise obligated to do so. Mr. McEachern indicates that the accused was travelling a bit faster than ten kilometres an hour as he left the parking lot. The truck stopped for a long moment before it turned on the paved road. Mr. Pearce observed the truck to leave the parking lot without difficulty.

c) Whether Mr. McEachern asked for the accused’s

keys:

Mr. Pearce said he did. Mr. McEachern denies that he did.

d) Whether either Mr. McCormick or Mr. Paton was

wearing a hat:

Janet K. indicates that the man that she saw stumbling, who she also observed as the driver of the truck, wore a Scottish cap. Neither Mr. McEachern nor Mr. Pearce observed either Mr. Paton or Mr. McCormick wearing a hat.

e) Who spoke with Mr. McCormick:

Mr. Pearce indicates he did most of the

talking when they spoke with Mr. McCormick. Mr. McEachern says that he did.

There are also inconsistencies within the evidence of Mr. Pearce and within the evidence of Mr. McEachern about the specific indicia of impairment they observed, which I summarized when reviewing their evidence.

After considering the evidence of the winery witnesses in the context of the evidence as a whole, I make the following findings:

I accept that Janet K. held an honest belief that the individuals that she observed at the winery were intoxicated. She contacted winery employees and police to report her concerns. She moved her vehicle because of her concern. She did not expressly identify Mr. McCormick as the person she saw stumbling or as the driver of the pickup truck. I do not accept her evidence with respect to the duration or content of the conversation between winery employees and the driver or her evidence with respect to the manner in which the truck negotiated and exited the parking lot because it is inconsistent with the evidence of Mr. McEachern and Mr. Pearce, which I do accept on those points.

I accept Mr. Pearce’s evidence and Mr. McEachern’s evidence that they interacted with the operator of the pickup truck whom they identified as Mr. McCormick. Neither of them detected the odour of alcohol on his breath despite being two feet away from him. I do not accept Mr. Pearce’s evidence that he observed the accused and another man stumbling, fumbling for keys and having difficulty getting into the vehicle. Based on his evidence, I do not find that he had adequate opportunity to make those observations, and they were not included in his original statement to police when his memory of the event was fresh.

I accept Mr. McEachern’s evidence that he did not ask Mr. McCormick for his keys and reject Mr. Pearce’s evidence to the contrary. In my view, it is reasonable to infer that Mr. Eachern would have had a more accurate recollection of that aspect of his evidence and if he had asked for the keys he would have advised police of that information when he gave his statement.

I accept Mr. Pearce’s evidence that he observed the accused ramble on during the course of their conversation. I accept Mr. McEachern’s evidence that the accused spoke at a pace that was slower than what he expected.

Finally, I accept the evidence of Mr. Pearce and Mr. McEachern that the accused drove his pickup truck over the grass berm that divides the winery parking lot, something which Mr. McCormick concedes was not meant to be driven on. Having rejected Mr. McCormick’s primary reason for doing so, specifically that his view of the rear view mirror was obstructed by Mr. Paton’s behaviour, I find that by driving over the berm Mr. McCormick’s conduct represented a marked departure from normal driving behaviour.

Given the temporal gap between the time Mr. McCormick left the winery and the time of the accident, the probative value of the evidence concerning the observations made by the witnesses at the winery is slight on the issue of whether the accused’s ability to operate a vehicle was impaired by alcohol at the time of the collision. The observations made at the accident scene are the most probative on the issue.

Sharon McCormick came upon the collision almost immediately after it occurred. She engaged Mr. McCormick in a conversation. She states that he said that he wasn’t hurt and he told her no police. The Crown submits that Mr. McCormick wanted to avoid police presence because he knew he was impaired. Ms. McCormick also described Mr. McCormick as presenting with slurred speech, by which she means the pitch in his voice varied from high to low and he spoke with a slow cadence. Those observations, together with her belief that Mr. McCormick initially stated that he did not want help despite the severity of the accident, are the indicia she relied on to conclude that Mr. McCormick had been drinking.

Ms. McCormick left the scene to call police and report the accident. She returned to the scene and observed Mr. McCormick outside the vehicle holding Mr. Paton upright. She told Mr. McCormick she was going to call an ambulance and he said, “We both need help.” When she returned again, she observed Mr. McCormick holding Mr. Paton upright for six to eight minutes before police arrived.

I accept Ms. McCormick’s evidence with respect to her attendance at the scene and her calls for police and an ambulance. I accept her evidence with respect to the pitch and cadence of Mr. McCormick’s speech, but not her characterization of slurring which does not, in my view, accord with her observations as described. She didn’t describe slurred speech in her police statement or her preliminary hearing testimony. I do not accept her evidence with respect to the specific content of her conversation with persons at the scene, including Mr. McCormick, because I do not find it is reliable on the point. As I will discuss later, her evidence about the content of the conversation she had with P.C. Mannina differs from his evidence, and I accept his evidence on that point.

In relation to his interaction with Ms. McCormick, I do accept the accused’s evidence that he requested an ambulance when she asked if he wanted her to contact the police, and I specifically do not find that his response to Ms. McCormick was designed to avoid a police presence at the scene for the following reasons. First, the collision was significant and both Mr. Paton and the accused were injured. Second, Mr. McCormick did not react when Ms. McCormick advised him that she had called the police. I find his non-reaction is not consistent with the inference that he was engaged in an attempt to prevent police involvement when he originally spoke to her. Ms. McCormick confirms that Mr. McCormick stated “We both need help” when she returned to the scene, which I find is consistent with his evidence that he asked for medical help when he had interaction with Ms. McCormick on the first occasion.

P.C. Mannina arrived at the scene to find Mr. McCormick holding Mr. Paton upright. He approached Mr. McCormick and smelled alcohol on his breath. Nonetheless, he instructed Mr. McCormick to continue to hold Mr. Paton up until EMS arrived about 11 minutes later. At some point while they were still at the accident scene, he observed that the accused had red, glossy and bloodshot eyes. I find P.C. Mannina to be a credible and reliable witness, and I accept his evidence. He made contemporaneous notes of his observations which refreshed his independent recollection of them. In arriving at my findings on the issue, I have placed no weight on P.C. Gray’s stated observations of indicia of impairment which were made at or after one A.M. Apart from the significant temporal gap between those observations and the collision, I do not find P.C. Gray’s evidence on the point to be reliable as he made no notations of those observations in either his contemporaneous notes or the alcohol influence report.

Finally, the cause of the accident is unexplained. Mr. McCormick was operating the vehicle at the time of the collision. I have rejected his evidence with respect to the alleged wheel grab. There is no other direct evidence that explains the mechanism of the single vehicle collision which occurred on a road that was very familiar to the accused. It is trite to observe that operating a vehicle in a manner that results in a violent collision with a tree, without an explanation, evidences a marked departure from normal driving behaviour. The result circumstantially evidences an impairment of the accused’s physical ability to drive, that is his ability to perform normal driving functions like steering, braking or reacting to changing circumstances in a proper and timely way or an impairment of the accused’s mental ability to drive, that is his ability to exercise reasonable judgment and perception while driving, or an impairment of both.

I am satisfied beyond a reasonable doubt that Mr. McCormick’s ability to operate a motor vehicle was impaired to some degree by alcohol at the time of the collision. I draw that inference based on the totality of the evidence of impairment before me in the context of the evidence as a whole. The accused was the operator of the only motor vehicle involved in the accident which was unexplained in which his vehicle left the travelled portion of the roadway and violently struck a tree. He admits that he consumed alcohol prior to the accident, which was confirmed by the smell of alcohol on his breath. He presented with indicia of impairment at the scene. His eyes were observed to be red, glossy and bloodshot.

When he spoke to Ms. McCormick, the pitch of Mr. McCormick’s voice rose and fell in an abnormal manner as Mr. McCormick demonstrated in her evidence. In that regard, I do not share the defence’s view that the manner of speech that Ms. McCormick described is consistent with the manner in which the accused spoke during his evidence. He did present with some fluctuation in the cadence of his voice during the course of his evidence and, although I do not find that it was to the same degree described by Ms. McCormick, I do not place any weight on her observation of cadence in assessing the issue of impairment. In addition, because of the subjective nature of the assessment of the pitch of an individual’s voice, I have not placed significant weight on that aspect of her evidence, which I otherwise accept.

The witnesses’ observations of Mr. McCormick holding up Mr. Paton and P.C. Mannina’s direction that he continue to do so do not leave me with a reasonable doubt on the impaired ability to operate element in the context of the evidence as a whole. The issue is whether the accused’s ability to operate a motor vehicle was impaired to some degree. In my view, the relatively static demands of holding up a person for a period of time are markedly distinct from the dynamic nature of the physical and mental demands of operating a motor vehicle, such that the ability to do the former does not necessarily ground a reasonable inference that the individual’s ability to do the latter is not impaired to some degree where there is evidence that the individual consumed alcohol.

It is clear that P.C. Mannina’s request was not indicative of a belief that the accused’s ability to drive was not impaired, since he arrested him for that offence shortly thereafter. His request was based on his desire not to move Mr. Paton before EMS arrived.

In the result, in my view, on the evidence of impaired ability to operate which I have just outlined as considered in its totality and in the context of the evidence as a whole, the only reasonable inference that can be drawn is that the accused’s ability to operate a motor vehicle was impaired to some degree by alcohol at the time of the collision, and I so find. I am satisfied on the totality of the evidence that by reason of the consumption of alcohol, Mr. McCormick drove with less ability than an ordinary careful driver in similar circumstances immediately prior to the collision on August 11, 2013.

I would have reached the same conclusion had I accepted Mr. McCormick’s evidence with respect to the wheel grab, although for different reasons. While his evidence in that regard provides an explanation for the accident, it also demonstrates that the judgement he exercised in relation to the operation of the motor vehicle in the moments before the collision represented a marked departure from the norm and thereby supports an inference of impairment. Mr. McCormick states that he involuntarily accelerated when Mr. Paton grabbed the steering wheel the first time. He then says that he was able to regain control of the motor vehicle and when he did he intentionally accelerated as he headed towards the 90-degree bend in the road in order to make the turn. Eventually, in cross-examination, he agreed that it would have been reasonable for him to have reduced his speed through braking as he headed toward the bend since he was faced with a dangerous situation, which included Mr. Paton’s behaviour in the vehicle.

In my view, the act of intentionally accelerating a motor vehicle to a velocity of potentially 60 kilometres an hour, as Mr. McCormick testifies, while approaching a 90-degree bend in a dirt road that is immediately adjacent to the entrance to a provincial park and in an area frequented by tourists and cyclists is a marked departure from normal driving behaviour. I would have also concluded that Mr. McCormick’s failure to reduce his speed by braking in reaction to the initial wheel grab, conduct which he concedes would have been reasonable in the circumstances, was also a marked departure from the norm. His decisions in that regard were part of a series of markedly poor exercises of judgment in relation to the operation of the motor vehicle that Mr. McCormick made, on his own evidence, in the moments before the collision. Specifically, and contextually, it’s helpful to remember that at this point in his narrative Mr. McCormick states he was afraid that Mr. Paton might cause an accident because of the comment at the Pierce residence.

a) He failed to move the beer from the cab of

the truck to the bed of the truck as soon as he learned that it had been moved to the cab.

b) After arguing with Mr. Paton to such an

extent that he stopped to let him out, he allowed Mr. Paton to get back into the vehicle and when he did so Mr. McCormick did not move the beer that was the subject of the argument to the bed of the truck.

c) He failed to bring the vehicle to a stop

immediately when Mr. Paton was waving a beer around with his outstretched arm to properly address that conduct.

In my view, Mr. McCormick’s evidence establishes an ongoing exercise of judgment in the operation of his motor vehicle that markedly departed from normal driving behaviour in the moments leading to the collision. When considering that evidence, together with the evidence of alcohol consumption and related odour, the observed condition of Mr. McCormick’s eyes and the abnormal fluctuation in the pitch of his voice, I would still have concluded that the Crown had proved that his ability to operate a vehicle was impaired by alcohol to some degree at the time of the collision had I accepted the wheel grab evidence and the evidence surrounding it.

I will now consider whether Mr. McCormick’s impaired ability to operate a motor vehicle caused bodily harm to John Paton.

Since the Crown has established beyond a reasonable doubt that the accused’s ability to operate motor vehicle was impaired by alcohol, the Crown must next prove that the accused’s impaired ability to drive caused the bodily harm which is charged.

The Crown is not required to prove that Mr. McCormick meant to cause bodily harm to Mr. Paton or anyone else by the manner in which he operated the motor vehicle immediately before the collision. Harm is any hurt or injury that interferes with an individual’s health or comfort. It has to be an injury that is more than brief, fleeting or minor. The injury must be caused by the accused’s impaired ability to operate a motor vehicle.

In order to establish the requisite causation, the Crown must establish two facts, each of which must be proved beyond a reasonable doubt. First, the Crown must establish that bodily harm was caused by the faulty driving of the accused. The Crown does not have to prove that the accused was driving dangerously, but the Crown must show that the accused did something that a reasonable driver would not have done or that he failed to do or to perceive something that a reasonable driver would have done or perceived. Second, the Crown must establish beyond a reasonable doubt that the negligent driving conduct of the accused, which caused the accident, was itself caused by the impairment of the accused’s ability to drive. This aspect of causation is established if it is proved that the accused’s impaired driving ability was at least a contributing cause of the unreasonable operation of the vehicle. A contributing cause must be more than just a minimal or insignificant cause of the accident.

The Crown does not have to prove that the accused’s impaired ability to operate a motor vehicle was the only or even the principal cause of what happened to Mr. Paton. Instead, the Crown must prove that the impairment of the accused’s ability to operate a motor vehicle was a significant contributing cause to Mr. Paton’s injuries, in other words something more than a de minimis cause.

Unquestionably, Mr. Paton sustained bodily injury as a result of the accident. His evidence about his significant physical injuries was not challenged. Further, on the evidence I accept, I find that the Crown has established beyond a reasonable doubt that, immediately prior to the collision, the manner in which Mr. McCormick operated his motor vehicle failed to accord with what a reasonable driver would have done in the same circumstances. A reasonable driver exercising reasonable care would have operated his or her vehicle in such a manner as to ensure that it would not inexplicably leave the travelled portion of the roadway and violently collide head-on into a tree in the same circumstances as those faced by Mr. McCormick.

Even if I accepted Mr. McCormick’s evidence with respect to the wheel grab and his responding conduct, which I do not, I still would have found beyond a reasonable doubt that he failed to operate the motor vehicle as a reasonable driver would have in the same circumstances. In my view, in the same circumstances that Mr. McCormick says confronted him, a reasonable driver exercising reasonable care would have reduced the vehicle’s speed or brought it to a complete stop once regaining control in the aftermath of the passenger’s interference with its steering. In the same circumstances, a reasonable driver would not intentionally accelerate immediately after an intoxicated passenger markedly interfered with the safe operation of the vehicle, particularly as the vehicle was in an acute approach to a very sharp bend in the road in an area frequented by tourists and cyclists.

On the evidence that I accept, I am satisfied beyond a reasonable doubt that Mr. McCormick’s failure to operate his motor vehicle as a reasonable driver would have in the same circumstances was caused by the impairment of his ability to drive, which resulted from alcohol. That is the only reasonable inference that can be drawn from the facts as I have found them, specifically that the accused’s ability to operate a motor vehicle was impaired to some degree by alcohol and that his motor vehicle inexplicably left the road and collided with a stationary object with significant force while he was operating it. I am therefore satisfied beyond a reasonable doubt that the accused’s impaired operation of the motor vehicle was a significant contributing cause of Mr. Paton’s bodily injuries.

Had I accepted Mr. McCormick’s evidence regarding the accident mechanism, which I do not, I would have concluded that his failure to take steps to reduce the vehicle’s speed and instead to intentionally increase it after the first wheel grab was caused by his impaired ability to operate a motor vehicle. There is no evidence of any other explanation for his failure to reduce his speed, which he acknowledges would have been reasonable to do in the circumstances. There is no evidence of any other explanation for his decision to intentionally accelerate towards the sharp bend after the first wheel grab. On his evidence, the only reasonable inference to be drawn in the context of the whole of the evidence would have been that the accused’s impaired ability to drive caused his unreasonable operation of the vehicle.

I also would have found that, in all the circumstances, his decision to accelerate instead of braking was more than a de minimis cause of the accident. It was a significant contributing cause. On Mr. McCormick’s evidence, a reduction in speed would have reduced the potential for danger in the circumstances. Instead, he testifies that he accelerated from 50 kilometres an hour to 60 kilometres an hour. That action exacerbated the risk posed by the dangerous conduct, which, according to Mr. McCormick, Mr. Paton was exhibiting in the vehicle, and the act of accelerating instead of braking reduced the opportunity for Mr. McCormick to take corrective or evasive action after the second steering wheel grab.

For the foregoing reasons, I find the Crown has established beyond a reasonable doubt that the accused’s impaired ability to operate a motor vehicle caused the bodily harm suffered by John Patn. In the result, I am satisfied that the Crown has proved all of the essential elements of the offence specified in count one of the indictment.

So we will take very short brake before I do count two, about ten minutes or so.

R E C E S S

U P O N R E S U M I N G:

REGISTRAR: Court is now resumed. Please be seated.

THE COURT: Alright. So, we will go on to disposition of count two.

Pursuant to section 254(3) of the Criminal Code, 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, impaired operation, as a result of the consumption of alcohol, the peace officer may by demand made as soon as practicable require the person to provide as soon as practicable samples of breath that in a qualified technician’s opinion will enable a proper analysis to be made to determine the concentration of alcohol in the person’s blood. Pursuant to section 254(5) of the Code, everyone commits an offence who, without reasonable excuse, fails or refuses to comply with the demand made under section 254.

The Crown submits that the elements of that offence are clearly made out in this instance. Specifically, P.C. Mannina had reasonable grounds to demand a breath sample from Mr. McCormick at the time of his arrest. Mr. McCormick was able to speak with counsel of his choice before P.C. Gray, a qualified breath technician, attempted to elicit a sample from him. P.C. Gray first engaged Mr. McCormick in a casual conversation to determine his willingness to provide a sample. Mr. McCormick unequivocally indicated that he would refuse to provide a sample on five different occasions. P.C. Gray formally asked Mr. McCormick to provide a sample after he was medically cleared to do so. Mr. McCormick failed or refused to provide the sample, despite P.C. Gray’s advice that it was an offence to do so.

Mr. McCormick submits that P.C. Mannina lacked the requisite grounds to demand a breath sample from him. He also asserts that the evidence of his alleged words of refusal ought to be excluded pursuant to section 24(2) of the Charter because his right to counsel was infringed by both the delayed implementation of his right and because he was not afforded an opportunity to consult with counsel a second time when it was clear that he was confused with respect to whether the legal advice he received applied to the sample request. Finally, he submits that the evidence fails to establish beyond a reasonable doubt that he failed or refused to provide a breath sample to P.C. Gray.

First I will consider whether P.C. Mannina had the requisite grounds to make a breath demand. The issue is whether at the time that P.C. Mannina made a breath demand at 8:51 P.M. he had reasonable grounds to believe that Mr. McCormick had committed an offence under section 253 of the Code within the preceding three hours. In determining that issue, I have applied the following legal principles:

1. In order to have reasonable grounds, an

officer must have both a subjective belief and the grounds must be objectively established. See R. v. Storrey 1990 125 (SCC), [1990] 1 S.C.R. 241, a 1990 decision of the Supreme Court of Canada.

2. The officer’s grounds to believe need not

amount to proof beyond a reasonable doubt or even a prima facie case. Rather, the requisite grounds will exist when they evidence a credibly based probability.

3. Reasonable grounds as to impairment to drive

is essentially an opinion. The belief, which is based on perceived facts, is frequently a compilation of a state of facts that are too sudden and complicated to be narrated separately and distinctly. See R. v. Censoni (2002) 22 M.V.R. (4^th) 178 (Ont. S.C.), a decision of the Ontario Superior Court of Justice.

4. In determining whether an officer had

sufficient grounds to make the demand, the appropriate inquiry is not whether the officer’s belief as a predicate of the demand was accurate or not; it is whether it was reasonable. That it was drawn from hearsay, incomplete sources or that it contains assumptions will not result in its legal rejection by resort to facts which emerge later. What must be measured are the facts understood by the officer when the belief was formed. See R. v. Ostojic, 2009 49892 ON SC), a decision of the Ontario Superior Court of Justice citing with approval R. v. Musurichan, 1990 11054 (QC CA), 1990 ABCA 170, 107 A.R. 102, a decision of the Alberta Court of Appeal.

5. The court is not precluded from finding that

an officer objectively held reasonable grounds even though the officer does not articulate his or her subjective belief as to the grounds. The court is entitled to draw inferences from the circumstances. See R. v. Nesbeth, 2008 ONCA 579 C.C.C. (3d) 567, at paragraph 20, a decision of the Ontario Court of Appeal with leave to the Supreme Court of Canada dismissed.

6. Subjective belief can be and frequently is

proven by indirect or circumstantial evidence. That principle is applicable to the determination of the subjective belief of an officer making a demand for a breath sample under section 254 of the Code. See R. v. Subramanian 2004 12189 (ON SC), a 2004 decision of the Ontario Superior Court of Justice, any authorities cited therein.

7. An officer’s belief and its reasonableness

may be inferred in the absence of the officer uttering words such as “I believed on reasonable grounds that the accused was driving at the time of the accident, and I believed further on reasonable grounds that the accident occurred within the preceding three hours” in his or her testimony. See R. v. Clarke (2000), 1 M.V.R. (4^th) 298 (Ont. S.C.), a 2000 decision of the Ontario Superior Court of Justice. Rather, the existence and the basis of the officer’s belief may be inferred from circumstantial evidence. See R. v. Jones, 2006 ONCJ 89, 32 M.V.R. (5^th) 70, a 2006 decision of the Ontario Superior Court of Justice.

Section 254(3) requires the officer to have grounds to believe that a person to whom a breath demand is to be made

1. operated a motor vehicle;

2. while his ability to do so was impaired

By alcohol; and

3. the impaired operation occurred within three hours before the demand is to be made.

For the following reasons, I find that P.C. Mannina had reasonable grounds to believe each of these elements when he made the breath demand. First, on the issue of whether there were reasonable grounds to believe that Mr. McCormick operated the motor vehicle. When P.C. Mannina arrived at the scene, both the accused and Mr. Paton were outside the only vehicle involved in the collision. P.C. Mannina testifies, and I accept, that before he made the breath demand, Ms. McCormick identified the accused as the driver, notwithstanding Ms. McCormick’s evidence that she did not identify the driver until she gave her statement several hours later and necessarily after the breath demand was made. P.C. Mannina recalls, with detail, the manner in which Ms. McCormick identified the accused as the driver. Specifically, she identified the accused as the individual sitting in the driver’s seat at the time she arrived at the scene, and he recalls that she pointed to the accused and said, “He’s the one driving.” His memory in that regard is refreshed by contemporaneous notes that he made on the point.

Further, in cross-examination, the defence adduced evidence of some inconsistencies between Ms. McCormick’s trial evidence and her preliminary hearing evidence about what she recalled was said by her to Mr. McCormick and by Mr. McCormick to her at the scene. As a result, I do not accept Ms. McCormick’s evidence about what was said to and by her at the scene as a reliable account of what was actually said. I find that Ms. McCormick identified the accused as the driver of the pickup to P.C. Mannina before he made the breath demand, and as a result he held reasonable grounds to believe that the accused was the driver.

The Crown also submits that on his own evidence, Mr. McCormick identified himself as the driver prior to the demand by advising police that his passenger was fighting with him. P.C. Mannina denies that statement was made to him and, accordingly, it cannot form part of his section 254(3) grounds.

On the issue of whether there were reasonable grounds to believe that the accused had committed an offence set out in section 253, on arrival at the scene, P.C. Mannina observed an accident in which the only vehicle involved left the travelled portion of the roadway and struck a nearby tree. Weather conditions were favourable and it was still light out. There was no apparent explanation for the accident. Mr. McCormick asserts that he advised officers that his passenger was fighting with him. He did not say anything further about the mechanism of the accident or the allegations of a steering wheel grab. P.C. Mannina indicates that Mr. McCormick did not tell him about fighting with the passenger. I accept P.C. Mannina’s evidence on that point. That utterance is not recorded in his contemporaneous notes about the events at the accident scene, and he does not recall it being said. His evidence on the point was credible and I find it to be reliable. Even if that statement was made, I find that it would not have displaced P.C. Mannina’s objective grounds to believe that the accident was unexplained.

In addition, P.C. Mannina detected the odour of alcohol on the accused’s breath. While not every instance where evidence of alcohol consumption is combined with evidence of an unexplained accident results in reasonable grounds to believe a person committed an offence under section 253 of the Code, in this instance I find that it did.

The nature of the collision served to inform the officer’s grounds. The vehicle’s significant collision with a stationary object located off the road, combined with evidence of the accused’s alcohol consumption, the odour on his breath, and in the absence of any other explanation for the collision, support P.C. Mannina’s reasonable belief that the accused was operating a motor vehicle while his ability to do so was impaired by alcohol, and I find that P.C. Mannina held a reasonable subjective belief that the accused operated a motor vehicle while his ability to do so was impaired by alcohol.

On the issue of timing, I conclude that objectively the accident scene was relatively fresh when P.C. Mannina initially arrived. He observed that the occupants of the vehicle were still at the scene. Mr. Paton appeared grey and lifeless and was obviously in serious medical distress. Given the acute nature of Mr. Paton’s medical condition, there was no prospect that a reasonable inference could have been drawn that the accident had occurred more than three hours before a demand was issued. It would have been unreasonable to assume that Mr. Paton had been held in place by Mr. McCormick for over three hours. Further, P.C. Mannina had previously received information, which he accepted as reliable, that the vehicle involved in the collision left the winery between five and 5:30 P.M.

In my view, the only reasonable inference in the circumstances is that P.C. Mannina’s subjective belief was that the accident occurred shortly before Ms. McCormick called the police around eight P.M. I cannot conclude that there is any reasonable possibility that P.C. Mannina may have held a subjective belief that the accident could have occurred more than three hours previously and that nothing had been done in the meantime. Accordingly, I find P.C. Mannina held a reasonable subjective belief that the demand was made within three hours of the accused’s operation of a motor vehicle while his ability to do so was impaired.

In the result, I accept that prior to making the breath demand P.C. Mannina was aware of information that objectively constituted reasonable grounds to believe that the accused, within the preceding three hours, committed an offence under section 253. Given the existence of sufficient objective grounds to make a demand and the fact that P.C. Mannina made the demand, I find that he held a subjective belief that was objectively reasonable that grounds existed to make a breath demand at the time the demand was made.

I will now consider the accused’s section 24(2) application. In determining the accused’s assertion that his section 10(b) right was infringed because it was not implemented without delay, I have applied the following principles:

1. Pursuant to section 10(b) of the Charter,

everyone has the right on arrest and detention to retain and instruct counsel without delay and to be informed of that right.

2. The onus is on the applicant accused to

establish the alleged Charter breach on a balance of probabilities.

3. The purpose of the section 10(b) right is to

allow the detainee not only to be informed of his right and obligations under the law but equally, if not more important, to obtain advice as to how to exercise those rights. See R. v. Manninen 1987 67 (SCC), [1987] 1 S.C.R. 1233, a 1987 decision of the Supreme Court of Canada.

4. The right to retain and instruct counsel is

also meant to assist detainees regain their liberty and guard against the risk of involuntary self-incrimination. See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, a 2009 decision of the Supreme Court of Canada.

5. A detainee’s right to counsel must be

facilitated without delay in order to ensure fair treatment in the criminal process. When an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. The person has suffered a deprivation of liberty and is also at risk of self-incrimination.

6. As a result, a person who is detained is in

immediate need of legal advice and correspondingly entitled to seek legal advice without delay and upon request. See R. v. Bartle 1994 64 (SCC), [1994] 3 S.C.R. 173, a 1994 decision of the Supreme Court of Canada.

7. Police who arrest or detain an individual are obliged to:

a) inform the detainee of his or her

right to retain and instruct counsel without delay and the existence of Legal Aid and duty counsel;

b) provide the detainee with a reasonable

opportunity to exercise the right except in urgent or dangerous circumstances; and

c) refrain from eliciting evidence from the

detainee until he or she has had that reasonable opportunity, again except in cases of urgency or danger.

8. The duty to inform a detained person of his

or her right to counsel arises immediately

upon arrest or detention and the duty to

facilitate access to counsel arises

immediately upon the detainee’s request to

speak with counsel. The arresting officer is

obligated to facilitate the requested access

to counsel at the first reasonable

opportunity.

9. Section 10(b) guarantees that the individual will have access to a phone to exercise his or her right to counsel at the first reasonable opportunity. See R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, a 2014 decision of the Supreme Court of Canada.

10. When an accused person asserts that his right to consult with counsel without delay has been infringed, the trial judge must determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel. The Crown has the burden of establishing that the detainee who invoked that right was provided with a reasonable opportunity to exercise the right. In other words, the burden is on the Crown to show that any given delay in facilitating the right to counsel was reasonable in the circumstances. See R. v. Luong, 2000 ABCA 301, 271 A.R. 368, a 2000 decision of the Alberta Court of Appeal cited with approval in Taylor.

11. Whether a delay in facilitating counsel is reasonable is a factual inquiry. If the trial judge concludes that the first implementation duty was breached, an infringement is made out. See Taylor and Luong in that regard.

In this instance, Mr. McCormick was arrested at 8:52 P.M. and was advised of his right to counsel at that time. Mr. McCormick immediately requested an opportunity to speak with identified counsel. Police first attempted to facilitate access to counsel sometime after 12 A.M., approximately three and a half hours from the time of the accused’s request. A delay of that magnitude clearly infringes an accused’s rights under section 10(b) of the Charter unless the Crown can establish that despite the delay the right was implemented at the first reasonable opportunity.

The Crown submits that because of his injuries, his need for medical attention, his immobilization on the backboard and a lack of privacy at the ambulance base, there was no reasonable opportunity to facilitate Mr. McCormick’s contact with counsel while he was on the island. In that regard, I find that at the time he was arrested and provided with his rights to counsel, Mr. McCormick was restrained to a backboard and he remained restrained while he was on the island. He was transported by ambulance, in the custody of P.C. Mannina, from the accident scene to the Pelee Island medical base where he underwent triage care at 9:03 P.M.

While the accused does not recall attending at the medical base, I find P.C. Mannina’s evidence on the point to be reliable. It is supported by the content of his contemporaneous notes and I accept it. P.C. Mannina states, and I accept, that Mr. McCormick did not undergo continuous active medical treatment between 9:03 and 10:18 P.M., at which time they left for the airport. The accused was conscious and he remained in the officer’s custody the entire time they were at the base.

P.C. Mannina does not believe that the accused could have been afforded sufficient privacy to allow him to consult with counsel while at the base. He states the base’s first floor consists of a garage bay for the ambulance, two medical bays separated by curtains, a reception area and a bathroom. Apart from himself, Mr. McCormick and Mr. Paton, there were paramedics and doctors also present at the base. He does not believe that a private call to counsel could have been made from anywhere on the first floor. He did not believe that it was feasible to bring Mr. McCormick to the second floor, which is only accessible by stairs, because he was restrained.

Mr. McCormick testifies that prior to and subsequent to August 11, 2013, he attended the medical base for treatment from time to time. He states the first floor of the base consists of a medical office, a waiting area and separate examination rooms that are divided by walls, not curtains. He states there is a land line phone near the waiting area.

In my view, P.C. Mannina did not take reasonably sufficient steps to ascertain whether there was a reasonable opportunity to access counsel from the medical base. Mr. McCormick was at the base for one hour and 15 minutes. During that time he was not the subject of ongoing active medical treatment. P.C. Mannina did not know nor did he take any steps to determine if a land line phone was available on the first floor. There is no evidence that he made any inquiries of the medical staff to determine if the accused could be afforded privacy to speak with counsel from the base. P.C. Mannina did not advise Mr. McCormick that contact with counsel could not be facilitated from the base or that he would have to wait until they arrived on the mainland before contact could be made. His contemporaneous notes reflect that he did not converse with the accused about his right to counsel between the time of the accused’s initial request and the time Mr. Munroe was contacted over three and a half hours later.

In my view, P.C. Mannina’s stated belief that he could not reasonably facilitate contact between the accused and counsel at the medical base is more consistent with a retroactive imputation of impracticability than an accurate description of his contemporaneous assessment of the circumstances while at the base. I accept P.C. Mannina’s evidence that while he was at the base he was primarily focused on Mr. Paton’s condition, and I find that, as a result, he did not avert to the potential that Mr. McCormick’s section 10(b) right could have been facilitated there and he did not take any steps to determine if that potential opportunity was a reasonable one in the circumstances.

As a result, I am not satisfied that the Crown has established, on a balance of probabilities, that Mr. McCormick’s request to access counsel was facilitated at the first reasonable opportunity. I therefore find that Mr. McCormick has established that his section 10(b) right was infringed in that regard.

The accused also asserts that there were other opportunities to facilitate contact with counsel available to P.C. Mannina on the island that he did not pursue, specifically at the airport and through the use of the officer’s cell phone. On the evidence before me, I conclude that neither of those options afforded a reasonable opportunity to facilitate access to counsel.

Between 10:18 P.M. and 11:25 P.M., P.C. Mannina and Mr. McCormick remained in the back of an ambulance at the airport as they waited to be airlifted off the island. There is an outbuilding at the airport. There is no evidence that the outbuilding was occupied at that time, late at night on a Sunday, and apart from Mr. McCormick’s stated belief that there is a land line in the building, there is no evidence that the building housed an accessible and private method by which Mr. McCormick could have communicated with counsel. In the circumstances of this case, I do not find that a potential opportunity to access counsel that required removing the accused from the ambulance on a backboard and wheeling him to a building under the control of a third party was a reasonable one. I do not find that Mr. McCormick’s section 10(b) right was infringed because P.C. Mannina did not attempt to implement that course of action.

Finally, P.C. Mannina gave evidence that in order to facilitate the implementation of Mr. McCormick’s right to counsel he would have allowed Mr. McCormick to use his cell phone but for the lack of a reliable cell signal on the island. There is some evidence that suggests that the signal strength on portions of the island was stronger than P.C. Mannina was apparently aware. However, the issue of strength of the cell phone signal does not need to be determined in order to determine this aspect of the application. In light of privacy and safety issues, the police are under no legal duty to provide their own cell phones to a detained individual. See Taylor at paragraph 28.

Accordingly, I do not find that P.C. Mannina’s failure to make his cell phone available to the accused constituted a breach of the accused’s section 10(b) right in any event of the prevailing signal strength.

I do find that the infringement of the accused’s section 10(b) right arising from its delayed implementation did not lead to the development of any self-incriminating evidence before the accused finally spoke to counsel at 12:17 A.M. While on the island, P.C. Mannina did not attempt to further the investigation after the accused’s arrest. He did not attempt to question the accused about the circumstances of the alleged offence. He made ongoing observations of the presence of an odour of alcohol on the accused’s breath, which I conclude would have been made in any event of the Charter infringing conduct. However, as I will explain below, I conclude that the delay in implementing the accused’s right to counsel materially contributed to the accused’s stated confusion about the applicability of his counsel’s advice to P.C. Gray’s subsequent request for a breath sample after one A.M.

With that, I will now consider the accused’s assertion that his 10(b) right was infringed because he was not permitted an opportunity to consult with counsel a second time.

Normally section 10(b) affords the detainee a single consultation with counsel. However, in some circumstances a further opportunity to consult with a lawyer may be constitutionally required. Generally these circumstances involve a material change in the detainee’s situation after the initial consultation. See R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, a 2010 decision of the Supreme Court of Canada.

In Sinclair, the court observed the following principles at paragraphs 47 through 55:

1. Section 10(b) should be interpreted in a

manner that fully respects its purpose of supporting the detainee’s section 7 right to choose whether or not to cooperate with police investigation. As an aside, I observe that compliance with a breath demand does not engage section 7 of the Charter with respect to a right to remain silent, and that is my comment and not the Supreme Court’s.

2. That purpose is normally achieved through a

single consultation at the time of detention or shortly thereafter. This gives the detainee a meaningful choice whether to cooperate with the investigation or decline to do so.

3. In some instances, 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.

4. A change in circumstances after the initial

consultation can trigger a concern that the initial advice may no longer be adequate. Where it does, the detainee may require a second consultation with counsel in order to ensure that the detainee has information relevant to choosing whether to cooperate with the investigation.

5. For the purpose of an alleged infringement of

a detainee’s section 10(b) right, the inquiry is whether a second consultation was required in the circumstances. The police are at liberty to facilitate any number of further consultations with counsel even in the absence of a Charter mandated obligation to permit a further consultation with counsel.

6. The non-exhaustive circumstances where a

second consultation is require include the following:

a) Where the police seek to involve the

detainee in non-routine investigative procedures, like participating in a line-up, that do not fall within the expectation of the advising lawyer at the time of the initial consultation. Here, the purpose of section 10(b) is achieved to ensure through a second consultation with counsel the detainee is provided with the information necessary to make a meaningful choice whether to participate.

b) The nature of the detainee’s legal

jeopardy changes after his or her

initial consultation with counsel such that the initial advice given may no longer be adequate to the actual

situation the detainee faces.

c) There is reason to question the

detainee’s understanding of his section 10(b) right. For example, if the events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to counsel. Similarly, if the police have undermined the legal advice the detainee has received, this may have the effect of nullifying it. To counteract that effect it is necessary to give the detainee a further right to consult counsel.

7. While the categories of circumstances in which a right to a further consultation with counsel are not closed, additions to them should only be developed where necessary to ensure that section 10(b) has achieved its purpose.

8. The change in circumstances asserted to justify a second consultation with counsel must be objectively observable in order to trigger the additional implementation duties of police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

9. The question remains whether a further opportunity to consult a lawyer is necessary to fulfil section 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.

In R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 492, a 2010 decision of the Supreme Court of Canada, the accused requested the opportunity to speak with a specified counsel prior to police questioning. When that lawyer was not available, the accused spoke briefly with duty counsel. During the course of subsequent police questioning, the accused stated several times that he wanted to speak with a lawyer and he wanted a lawyer present. The questioning officer repeatedly confirmed that it was the accused’s choice whether to speak or not. He also began to progressively reveal the evidence against the accused and pressed him for his version of events. In response, the accused expressed his sense of vulnerability without legal representation and his ignorance of legal ways. Although he insisted that he would not speak without his lawyer, he ultimately made incriminatory statements. The accused asserted that his section 10(b) right was infringed. In finding against that assertion, the court relied on the principles set out in Sinclair and held that the accused had confirmed that he understood that it was his choice to speak or not and, ultimately, there were no changed circumstances during the course of the interrogation that required renewed legal consultation.

The court specifically held at paragraph 23:

“...where developments in the investigation suggest that the detainee may be confused about his choices and right to remain silent, this may trigger the right to a renewed consultation with a lawyer under s. 10(b).”

In this instance, the Crown submits there are no objectively discernable changes in the circumstances from the time that Mr. McCormick spoke with counsel at 12:17 A.M. and the time of his refusal to provide a breath sample at 1:27 A.M. Specifically, at the time he spoke with Mr. Munroe, he had been arrested for impaired operation of a motor vehicle and he had received a breath demand from P.C. Mannina. In that context, the provision of a breath sample is not an extraordinary or unexpected investigatory procedure incapable of being reasonably contemplated at the time of the initial consultation with counsel.

Mr. McCormick was subjectively aware of the breath demand procedure because he had a similar experience in 2002. The investigatory circumstances and the jeopardy faced by Mr. McCormick remained unchanged from the time of his consultation with counsel to the time that he refused to provide a sample.

Further, the Crown submits that when P.C. Gray interacted with him, there was no indication that Mr. McCormick was confused about the nature of the legal advice he was given and his refusal to provide a breath sample was unequivocal. As the court held in Sinclair, an after the fact assertion of confusion without more is not enough to trigger a right to a further consultation with counsel.

In my view, the accused has established, on a balance of probabilities, that in all of the circumstances, a second consultation with counsel was required to ensure that Mr. McCormick exercised a meaningful choice about whether to provide the breath sample and, perhaps more fundamentally, to ensure that he understood that he was legally obligated to do so.

I appreciate that the circumstances in this instance do not fall neatly into one of the categories that were expressly identified in Sinclair, and I appreciate that normally a detainee is entitled to one consultation with counsel. Further, an after the fact assertion of confusion without more will not trigger a right to a second consultation; however, I am persuaded that on a balance of probabilities that there are objective indicators that a second consultation was required to ensure the purpose of section 10(b) was achieved.

I find that the accused’s arrest and the related breath demand followed the accused’s involvement in a relatively significant collision in which his airbag deployed and he was injured. The accused did not have the benefit of consulting with counsel at the time of detention or shortly thereafter. His initial conversation with counsel occurred approximately three and a half hours after he was arrested, and therefore three and a half hours after the breath demand was made. There is no evidence that police discussed his right to counsel with him during that time.

P.C. Mannina testifies that when he spoke with Mr. McCormick’s counsel at 12:14 A.M., he identified the offence for which the accused was arrested. There is no evidence that he advised him that a breath demand had been made. There is no definitive evidence that Mr. McCormick advised his counsel about the breath demand, that he received advice from his counsel in that regard, or that he even remembered that it had been made at the time of his consultation. In his direct examination, the accused states that, at the time he spoke to counsel, he understood he was going to be asked to give a breath sample. In cross-examination, he states that he did not remember that P.C. Mannina had demanded a breath sample when he spoke to Mr. Munroe. There is no evidence that the accused was reminded of the breath demand by police at any time before he spoke to his counsel, which was several hours after it was made. Additionally, when Mr. McCormick spoke with his counsel he had not yet met with and engaged in what P.C. Gray describes as a casual conversation designed to determine if he would provide a sample.

There is no evidence that, at the time he spoke with counsel, Mr. McCormick was aware that a portable breathalyser unit had been brought to the hospital prior to his arrival. Mr. McCormick states that when he spoke to his counsel he “explained a bit of a brief on the situation on the accident,” and he thought that his lawyer told him “not to give them anything.” He specifically denies that he was counselled to refuse to provide a breath sample.

Based on his interpretation of the advice he was given, he claims to have been confused during the casual conversation when P.C. Gray asked him if he was going to provide a sample. He did not know if the advice he believed that he had received applied to a breath sample, and he states that he asked P.C. Gray for an opportunity to consult Mr. Munroe again to confirm the advice he received. I accept that Mr. McCormick believed that he was advised by Mr. Munroe not to give them anything and that he was not advised to refuse to provide a breath sample. I have made significant adverse findings against Mr. McCormick’s credibility as it relates to his evidence of the pre-collision events. However, I accept this aspect of his evidence because, as I will explain below, in my view there is independent evidence that confirms Mr. McCormick’s evidence that he was confused about the applicability of the legal advice he received to the breath demand and that he explained his confusion to P.C. Gray.

While Mr. McCormick testifies that he was familiar with the breath sample procedure because he provided one 11 years ago, there is no evidence that he received legal advice about his obligation to provide a sample on August 12, 2013. P.C. Gray initially met with Mr. McCormick between one A.M. and 1:06 A.M. He denies that Mr. McCormick expressed confusion over the legal advice he received. He interpreted the accused to unequivocally indicate “I’m not blowing” and further that he had been advised by his lawyer not to provide anything, including a sample. P.C. Gray questioned to himself the accuracy of the accused’s latter statement. Again, these are P.C. Gray’s interpretations of Mr. McCormick’s statements and not verbatim quotes. Based on this encounter, he expected that Mr. McCormick would refuse to provide a breath sample when medically cleared to do so.

I do not accept P.C. Gray’s evidence that the accused unequivocally indicated he would not blow during their conversation, because I do not find it to be reliable. P.C. Gray does not recall and he did not record the specific words which the accused used to convey that alleged sentiment. Additionally, he states that if Mr. McCormick had stated that he wanted to talk to his lawyer again he would have allowed him to do so using the hospital phone. However, he says that it never became clear to him that the accused wanted to talk to his lawyer again.

That evidence is difficult to reconcile with P.C. Mannina’s attempt to contact Mr. McCormick’s counsel immediately after P.C. Gray’s casual conversation with him. Neither officer could explain why the second call to counsel was made, although P.C. Gray concedes that it would have resulted from something that happened during his casual conversation. P.C. Gray’s evidence about the circumstances in which he would have facilitated Mr. McCormick’s contact with counsel again leads me to infer that the accused did ask for the opportunity to speak to his counsel again, and I find that it confirms that aspect of the accused’s evidence.

I accept that Mr. McCormick was confused about whether the legal advice he believes he was given applied to a request for a breath sample when the issue was raised by P.C. Gray sometime after one A.M., and I accept that he advised P.C. Gray he wanted the opportunity to consult with his lawyer to confirm whether he was required to provide the sample. I also find that by reason of the foregoing, P.C. Gray asked P.C. Mannina to contact Mr. Munroe again because there is no evidence that P.C. Mannina and Mr. McCormick interacted between one A.M. and 1:11 A.M. when the call was made.

Based on the foregoing, I find that circumstances developed that objectively suggested that the accused was confused about the extent of the legal choices available to him and specifically whether he had the discretion to decline to provide a breath sample. I also find that, objectively, a further consultation was required in order to ensure that the detainee was fully aware of his obligations under the law and to permit the detainee to engage in an informed choice whether to discharge his obligations under the law. I find that P.C. Gray subjectively perceived there was a compelling reason to permit Mr. McCormick to consult with counsel again because he asked P.C. Mannina to facilitate a second contact.

I therefore find, in all the circumstances, that a second consultation with counsel was necessary in order to ensure that the purpose of section 10(b) was achieved, which in this particular case was to ensure that Mr. McCormick was aware of his legal obligation to provide the breath sample and the legal consequences that would befall him if he did not. The circumstances to which I refer include the inordinate delay in the implementation of the accused’s right to counsel (three and a half hours) - in my view, the delay in implementing the accused’s right to counsel created the risk that the accused may not have recalled or otherwise have imparted information to counsel that was relevant to the nature of the legal advice given; failure to advise the accused of the reason for the delay in implementation while on the island; the four-hour delay between the original breath demand and P.C. Gray’s casual conversation with the accused about providing a sample; the uncertainty of whether the accused’s counsel was aware of the breath demand; the uncertainty of whether the accused received any advice about the breath demand in the original consultation; the accused’s stated confusion about the scope of his legal choices; and P.C.’s Gray’s subjective perception that the accused’s counsel should be contacted again, which was formed before he formally requested the sample after Mr. McCormick was medically cleared to provide one.

Despite P.C. Mannina’s attempt to contact counsel again, P.C. Gray states he proceeded to make a formal request for a sample at 1:27 A.M., 16 minutes after the unsuccessful attempt to contact counsel was made and within minutes after Mr. McCormick was medically cleared to provide the sample. He states that Mr. McCormick refused. He does not recall nor did he record the specific words that he expressed to do so. Mr. McCormick does not recall a formal request for a sample being made of him. I find that the formal request was made.

Since I have found that Mr. McCormick was entitled to a second consultation with counsel in order to give purpose to his section 10(b) right, it follows that until he had a reasonable opportunity to do so, the police were obligated to refrain from eliciting evidence from him. P.C. Gray did not explain why he proceeded to formally request a breath sample shortly after requesting P.C. Mannina to contact counsel again but before that contact was made. There is no evidence establishing that as a matter of urgency, at 1:27 A.M., P.C. Gray was required to attempt to elicit a formal indication from Mr. McCormick about whether he would provide a sample. While it had been over five hours since the accident, no evidence was adduced with respect to a temporal limit by which the sample had to have been taken.

In addition, P.C. Gray’s evidence indicates that he would not have been in a position to take a sample until 16 minutes after he elicited the accused’s formal refusal.

In my view, to the extent the accused was compelled to provide a formal response to whether he would provide a breath sample before he was given a reasonable opportunity to further consult with counsel, his right under section 10(b) was infringed.

The remedial request pursuant to section 24(2) of the Charter:

The applicant seeks a ruling pursuant to section 24(2) of the Charter excluding from trial all evidence derived from the Charter violation, in this case the words that evidenced his alleged refusal to provide a breath sample. The onus is on the applicant to establish, on a balance of probabilities, that the admission of the evidence he seeks to exclude would bring the administration of justice into disrepute.

Section 24(2) focuses on the overall repute of the justice system, which the court must promote and protect in order to maintain the integrity of and public confidence in the justice system. In determining an application pursuant to that section, the court must conduct an objective inquiry as to whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the impugned evidence would bring the administration of justice into disrepute.

The focus of the inquiry is not aimed at punishing the police or compensating the accused. An application for the exclusion of evidence under section 24(2) requires a balancing of the public interest in the protection of Charter rights and the public interest in the adjudication of criminal allegations on their merits, having regard to:

1. the seriousness of the Charter-infringing

state conduct;

2. the impact of the breach on the Charter-

protected interests of the accused; and

3. society’s interest in the adjudication of the

case on its merits. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, a 2009 decision of the Supreme Court of Canada.

I will address each of these requisite areas of

inquiry below.

1. The seriousness of the Charter-infringing state’s conduct:

This stage of the analysis requires the court to

consider whether the admission of the evidence

obtained by Charter-infringing conduct would send

the message to the public that courts condone

deviations from the rule of law by failing to

disassociate themselves from the fruits of that

unlawful conduct. The court must consider the

seriousness of the violation viewed in terms of

the gravity of the offending conduct by state

authorities who are required to uphold the rights

guaranteed by the Charter. There is a spectrum of

Charter-infringing conduct that ranges from the

minor, trivial or technical to wilful or reckless

disregard of Charter rights. The greater the

seriousness of the Charter breach, the greater the

risk that evidence obtained as a result of that

breach, if admitted, would have a negative effect

on public confidence in the rule of law and risk

bringing the administration of justice into

disrepute.

In my view, the Charter-infringing conduct in this instance did not result from a wilful disregard of the accused’s Charter rights, but it is also not minor, trivial or technical. P.C. Mannina’s failure to facilitate Mr. McCormick’s right to counsel at the medical base, or to make any inquiries to verify his assumptions that his right to counsel could not be implemented at that location, falls shorts of the conduct expected of police officers and ought not to be condoned. To his credit, P.C. Mannina did not attempt to gather evidence from Mr. McCormick before he was finally given the opportunity to consult with counsel.

P.C. Gray’s conduct is more curious. After his casual conversation with Mr. McCormick, he was of the view that it was appropriate to facilitate a further contact with counsel, as evidenced by his request that P.C. Mannina do just that. However, he subsequently made a formal request for a breath demand when he knew that Mr. McCormick had not yet spoken with counsel to clarify the applicability of the advice he believed he had received to the sample request. Having determined that there was a reason to facilitate a further consultation with counsel, it is difficult to understand why P.C. Gray did not wait for that to be done before making his formal request. He did not explain his conduct in that regard. Without an explanation, I am unable to conclude that he acted in good faith. However, on the evidence before me, I do not conclude that he acted with wilful disregard of Mr. McCormick’s Charter rights. Nevertheless, his course of conduct frustrated the accused’s access to counsel prior to the formal request for a sample. In the result, I find the Charter-infringing state conduct to be of moderate severity. This factors leans in favour of exclusion of the evidence.

2. The impact of the breach on Charter-protected

interests of the accused:

At this stage of the analysis the court must assess the extent to which the breach has undermined the Charter-protected interests of the applicant. The more serious the impact on those protected rights, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. Courts are expected to look at the interests engaged by the infringed right and examine the degree to which the violation impacted those interests. A detainee’s right to counsel must be facilitated without delay in order to ensure fair treatment in the criminal process, to provide the detainee with information about his legal rights and his legal obligations, and to guard against the risk of self-incrimination, which all further the purpose of allowing the detainee to make a meaningful choice about whether to cooperate with the police investigation.

The inordinate delay in implementing the accused’s section 10(b) right undermined his ability to consult counsel without delay. However, P.C. Mannina did not elicit any evidence from Mr. McCormick before he spoke with counsel and therefore did not exploit the failure to facilitate the accused’s contact with counsel at the first reasonable opportunity. However, P.C. Gray’s actions directly undermined the interest protected by section 10(b). Mr. McCormick expressed uncertainty with respect to his obligation to cooperate with police and provide a breath sample as requested. He requested the opportunity to consult further with counsel. P.C. Gray determined there was a sufficient reason to request that P.C. Mannina contact counsel again at a time when P.C. Gray believed that the accused would likely refuse a formal request for a sample when made, and thereby would commit an offence under section 254(5) of the Code. Despite P.C. Mannina’s efforts to contact counsel, P.C. Gray proceeded to make his formal request for a breath sample before the accused received further legal advice, frustrating the purpose of section 10(b).

To his credit, P.C. Gray made an effort to attenuate the accused’s confusion about his legal obligations by explaining that it was an offence to refuse to provide a sample and that the penalties would be the same as blowing over .08. However, his effort does not stand as an acceptable alternative to legal advice from the accused’s counsel of choice. This factor heavily favours exclusion.

3. The adjudication of the case on its merits:

In considering this factor, the court must determine whether the truth seeking function of the trial is better served by the admission of the evidence or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. I observe that at paragraph 84 of Grant the court states:

“...it is the long-term repute of the justice

system that is s. 24(2)’s focus...[T]he short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the long-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.”

The evidence of the accused’s alleged refusal did not exist in any event of the Charter breach. The alleged refusal was made at a time that the accused was confused about the legal advice he was provided and the breath technician perceived as sufficient reason to request a further contact with his counsel. In such circumstances, the admission of the refusal secured before the accused had the opportunity to consult with counsel would tend to bring the administration of justice into disrepute.

The importance of the evidence to the Crown’s case is also a factor to be considered at this stage. The subject evidence is critical to the Crown’s case on count two. The evidence sought to be excluded constitutes the evidence of the actus reus of the offence set out in count two. Society’s interest in the adjudication of criminal trials on their merits would be undermined if the exclusion of the evidence effectively ended the Crown’s case.

The offence with which the applicant is charged is serious. The penalties for an offence under section 254(5) of the Code in this instance would be the same as those for the offence of impaired operation causing bodily harm, or at least potentially the same. See section 255(2.2) of the Code.

Ultimately, however, I conclude that Society’s interest in the adjudication of the case on its merits is best served by excluding evidence that was obtained as a direct consequence of the infringement of the accused’s section 10(b) right.

Balancing the factors on the facts as I have found them, I conclude that each of the relevant factors weighs in favour of a finding that the administration of justice would be brought into disrepute if the subject evidence was admitted.

Disposition of the Charter application:

I find that Mr. McCormick has established a breach of his right pursuant to section 10(b) of the Charter. After careful consideration, I find the balancing of all of the section 24(2) factors militates in favour of exclusion of the evidence identified in the notice of application.

Accordingly, the application is granted and I will endorse the application record accordingly. Without that evidence, I conclude the Crown has failed to establish that Mr. McCormick failed or refused to comply with a demand made to him by a peace officer under subsection 254(3) of the Code, and as a result I find him not guilty with respect to count two of the indictment.

Final disposition:

For the foregoing reasons, I make a finding of guilt with respect to count one in the indictment and a finding of not guilty with respect to count two.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Kelly Anne Webster, certify that this document is a true and accurate transcript of the recording of

H.M.Q. v. Jacques McCormick, in the Ontario Superior Court of Justice held at 245 Windsor Avenue, Windsor, Ontario, taken from Recording No. 0899-245-CRTRM1-20160530-104231-6-VERBEEG, which has been certified in Form 1.

August 26, 2016

Original signed by “Kelly Webster”

Kelly Anne Webster,

Court Reporter

2016 ONSC 6973

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

JACQUES McCORMICK

R E A S O N S F O R J U D G M E N T

BY THE HONOURABLE MR. JUSTICE G. VERBEEM

on May 30, 2016, at WINDSOR, Ontario

APPEARANCES:

T. KAVANAGH Counsel for the Crown

S. POLLOCK Counsel for the Accused

ONTARIO SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR JUDGMENT Page 1

TRANSCRIPT ORDERED ......................... August 24, 2016

TRANSCRIPT COMPLETED ....................... September 1, 2016

APPROVED FOR RELEASE ....................... September 12, 2016

ORDERING PARTY NOTIFIED .................... September 13, 2016