Court File and Parties

COURT FILE NO.: 16-43 DATE: May 1, 2017

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – DENNIS PIAMONTE Appellant

COUNSEL: Andre P. White, for the Respondent James Foord, for the Appellant

HEARD: February 16, 2017

Appeal of the conviction of driving while impaired by The Honourable Mr. Justice G. Renaud of the Ontario Court of Justice, dated April 19, 2016, at Morrisburg, Ontario.

REASONS FOR DECISION

JOHNSTON J.

[1] The appellant was acquitted at trial on a charge of driving ‘over 80’; he was convicted of driving while impaired. The appellant requests that the appeal against conviction be allowed and a new trial ordered.

[2] The appellant argues that the trial judge erred in law by failing to conduct a voir dire before admission into evidence of statements made by him to two paramedics. The appellant argues that when he made the statements, he believed the paramedics were ‘persons in authority’ and the trial judge ought to have conducted a voir dire to determine; first, were the receivers of the accused’s statements persons in authority and second, were the statements voluntary.

[3] The issue before this Court on appeal is:

Did the trial judge err in not directing a voir dire? If he did, was there evidence on the record sufficient to prove the Crown’s case beyond a reasonable doubt without the statements to the paramedics?

Background

[4] The appellant was observed operating a motor vehicle southbound on Highway 31 near his residence at 12 Maple Avenue. A civilian witness, Mr. Phillip Douglas, observed the appellant’s vehicle driving erratically, hitting the shoulder and going into the other lane multiple times. The matter was reported to police and on September 6, 2014 at 3:44 p.m., Constable Labbe was dispatched on a call, related to a car “all over the road”. He was provided with the license number and vehicle type. Constable Labbe saw the vehicle and eventually pulled in behind the vehicle in the driveway, of what turned out to be the appellant’s residence. The officer observed the driver exit the vehicle, stumble and experience difficulty standing on his feet. At the time, the officer was concerned the driver (the appellant) was either impaired, or in need of medical attention, related to diabetes. The officer requested an ambulance. The officer could not detect an odor of alcohol coming from the appellant.

[5] The appellant was given a glass of orange juice and, thereafter, he seemed a little more aware. The paramedics arrived, Constable Labbe determined that the appellant’s impairment was the result of a medical condition and ended his investigation. He determined he was not even considering a Highway Traffic Act citation.

[6] Thereafter, the appellant was left to deal with the two paramedics at his home. The paramedics felt the appellant’s condition was such that further tests were required to be done and they could only be done at the hospital. The paramedics suggested to the appellant that he accompany them by ambulance to the hospital. One of the paramedics, Mr. Heringer, testified, “…he (the appellant) was still a little hesitant about wanting to go to the hospital, but we were able to express that we wished to have him checked out further to ensure nothing was going on and he was compliant at that time.” [Transcript volume 1, pages 59 to 60.] The appellant previously told the paramedics that he did not need to go to hospital and that he was fine.

[7] While the appellant was transported to the hospital and, thereafter, at the hospital, the paramedics repeatedly asked what he had to drink. Initially, the appellant claimed to have not consumed any alcohol. Later, at the hospital, Paramedic, Ms. Brown, asked the appellant for a fourth time about alcohol consumption, saying, “I don’t really believe you only had a beer. Have you had anything more to drink?” He whispered that he drank a mickey of vodka. He asked the paramedic if she would take his license away. When she informed him that that was not her job, but that of the police, he refused to speak with her any further.

[8] Defence counsel at trial did not request a voir dire on the admissibility of the appellant’s utterance to the paramedics; nor did he seek an exclusion. In final submissions, counsel argued the paramedics were persons in authority.

The Law

[9] It is settled law that a trial judge has a duty “to conduct the trial judicially quite apart from the lapses of counsel” [R. v. Sweezey (1974), 20 CCC (2d) 400 (OCA)]. The issue of the duty of a trial judge to, on his or her own volition, conduct a voir dire on issues of voluntariness of an accused statement and whether the receiver was a person of authority was dealt with by the Supreme Court of Canada in R. v. Hodgson, [1998] 2 SCR 449. At paragraph 41 of the decision the court stated:

“…Where the defence has not requested a voir dire and a statement of the accused is admitted into evidence, the trial judge will only have committed reversible error if clear evidence existed in the record which objectively should have alerted him or her to the need for a voir dire notwithstanding counsel’s silence. Thus the test for holding a voir dire is assessed by an appellate court’s objective review of the evidence in the record to determine whether something should have triggered the trial judge’s obligation to conduct an inquiry. This test is different from the test applicable on the voir dire, which requires the trial judge to undertake an examination of the reasonable belief of the accused and the circumstance surrounding the making of the statement to determine both whether the receiver is a person in authority and whether the statement was made voluntarily.”

[10] Further, the Court stated at paragraph 45:

“However, the trial judge’s obligation is triggered only where the evidence makes the need for a voir dire clear. Evidence which clearly demonstrates that the receiver of the statement made by the accused was closely connected to the authorities should alert the trial judge to hold a voir dire.”

[11] The Court in Hodgson, supra, stated at paragraph 47 that:

“it should be emphasized that only rarely will a trial judge have heard sufficient evidence to trigger the need for a voir dire on the person in authority issue where the receiver of the statement is not a conventional person in authority.”

[12] In its summary of principles dealing with the requirement of a voir dire, the Court stated at Paragraph 48 (7):

“If it is contended that the recipient of the statement was a person in authority in the eyes of the accused then the defence must raise the issue with the trial judge. This is appropriate for it is only the accused who can know that the statement was made to someone regarded by the accused as a person in authority.”

Position of the Appellant

[13] The appellant argues there was evidence at trial sufficient to have alerted the judge of the necessity of conducting a voir dire, notwithstanding neither counsel sought it, as follows:

1. The appellant asked paramedic Brown (after telling her he consumed vodka) if she was going to take his license.
2. The appellant was on a stretcher in an ambulance taken to a hospital and his movements were directed by the paramedics.
3. Brown acknowledged she was a person in authority. The exchange of questions and answers in cross-examination on this issue was at page 65 of Volume I:

   Q: You might say you’re a person an authority figure, is that fair? A: You could put it that way, yes. Q: All right. Because you are in an official capacity, correct? A: Yes. Q: And you are uniformed in that capacity, correct? A: Yes. Q: And employed by a municipality? A: Yes.

4. The paramedic uniform was similar to a police uniform, except it had the word ‘paramedic’.
5. The appellant was first engaged with the officer who initially conducted a criminal investigation. It would not have been clear on the evidence that the appellant understood that the police detention ended.

[14] The necessity of a voir dire to determine if the receiver of the statement was a person in authority involves consideration subjectively from the viewpoint of the accused.

Analysis

[15] Upon a close inspection of the evidence and the trial judge’s reasons, I conclude there was no requirement of a voir dire to determine voluntariness of the statements. Paramedics can, at times, depending upon the evidence, be found to be persons in authority. However, there is nothing in this case to suggest that either paramedic was a person in authority. The trial judge was justified in not requiring a voir dire.

[16] The evidence is clear; by the time the appellant was transported to the hospital, he was no longer under police investigation of any sort. Constable Labbe felt (wrongly on the evidence) that the appellant’s impairment was not due to alcohol. The appellant was at no time under arrest. He was not detained when he went with the paramedics in the ambulance. He went to hospital on his own accord (at the suggestion of the paramedics no doubt) and not under police direction.

[17] While the paramedics wore a uniform that in some respects resembled a police uniform, it was different. Further, the appellant went to hospital in an ambulance, not a police car. Ms. Brown asked the appellant about his consumption of alcohol, not as an agent of the police; but for medical purposes. She clearly identified to him the police were no longer present. The relevant exchange in cross-examination is found at page 66 of Volume 1, line 19:

Q: It’s just you and I, you can tell me, for medical reason, tell me what you had to drink today? A: Yes. Q: That’s exactly how you did it? A: I don’t know if that’s exactly how I did it, but I told him that the police were not in the truck and that I was asking him for his health.

[18] Given the evidence before the trial judge, he was entitled to assume the paramedics were not conventional ‘persons in authority’, nor could the accused subjectively believe they were.

[19] The accused’s utterance to Ms. Brown, asking if she would take his license, is equivocal at best. This is in the context of evidence before the trial judge that in the ambulance, the appellant was crying, threatening suicide and acting odd.

[20] In my view, the trial judge was not required on the evidence, taken as a whole, to conduct a voir dire on the issue of ‘persons in authority’.

[21] For the foregoing reasons the appeal is dismissed.

The Honourable Mr. Justice J. M. Johnston

Released: May 1, 2017