CITATION: R. v. Hourihan, 2017 ONSC 727

COURT FILE NO.: CR-16-50000513

DATE: 20170209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EARL HOURIHAN

Defendant

Brady Donohue, for the Crown

R. Craig Bottomley, for the Defendant

HEARD: January 23-24, January 26-27 and January 30, 2017

REASONS FOR JUDGMENT

S.F. Dunphy J.

[1] At 3:06 a.m. on May 28, 2015, a motor vehicle operated by the accused Mr. Earl Hourihan struck Mr. Jesse Footit from behind near 3199 Lakeshore Blvd. West in Toronto. Mr. Footit was operating a push scooter in the right-hand lane of the roadway. He was injured and taken from the accident scene in an ambulance. He was later found to have suffered a broken arm, a concussion and some internal bleeding in the brain.

[2] The accused Earl Hourihan is charged with impaired driving causing bodily harm (s. 255(2) of the Criminal Code) and driving “over 80” causing bodily harm (s. 255(2.1) of the Criminal Code). Those charges were laid on July 23, 2015. On the date of the accident, Mr. Hourihan was initially charged only with the offences of impaired driving (s. 253(1)(a) of the Criminal Code) and driving “over 80” (s. 253(1)(b) of the Criminal Code).

[3] Among the legal issues raised by this case is whether the Charter rights of the accused were violated by failing to advise him of the possibility of the further (and more serious) charges that he now faces when he exercised his right to counsel early that morning. Other Charter challenges have been made regarding alleged delays in providing access to counsel and in taking the breath samples.

[4] The trial was held before me without a jury. The accused brought an application to exclude from evidence certain statements made by him as well as to exclude the results of the analysis of the breath samples taken from him pursuant to s. 24(2) of the Charter. The Crown brought an application to admit as voluntary certain statements made by the accused to investigating police officers. The evidence on the two voir dire applications was heard by me along with the trial evidence (i.e. a blended proceeding).

[5] The accused did not testify but agreed to a short agreed statement of facts that was made an Exhibit at the trial. The Crown called two non-police witnesses and four police officers involved in various aspects of the investigation as witnesses. A toxicology expert report was admitted on consent (subject to the outcome of the voir dire regarding the admissibility of the analysis of the breath samples to which it relates). Evidence was heard over four days of trial with the fifth day being employed for final argument.

[6] For the reasons that follow, I have (i) allowed the application of the Crown and find the statements made to Officer Paroussoudi were made voluntarily and are admissible; (ii) dismissed the application of the accused alleging his Charter rights were violated; (iii) found that even if there were a Charter breach as alleged, the circumstances would not warrant exclusion of the subject evidence pursuant to s. 24(2) of the Charter; and (iv) found the accused guilty of the two counts as charged in the indictment of impaired driving causing bodily harm and operating a motor vehicle “over 80” causing bodily harm.

Factual background

[7] At about 3:00 a.m. on May 28, 2015, Mr. Jesse Footit decided to visit a friend near his Etobicoke home to play video games. Mr. Footit was then 20 years old. He was employed as a bartender and was often up at that hour. He was not at work that evening and had consumed neither alcohol nor drugs. He set out on a push scooter (essentially a long skate board with a vertical pole at the front to steer with).

[8] Mr. Footit’s route took him westbound along Lakeshore Blvd. West near Kipling. At that time of the morning, there was almost no traffic present. Near Kipling, Mr. Footit was overtaken by a car driven by Mr. Lata driving westbound.

[9] At that point, Lakeshore Blvd is a four-lane road, with two lanes running in each direction. The left-hand lane is mixed-use, having street car tracks but also being available for vehicle traffic (it is not a dedicated right of way). The right-hand lane on the north (westbound) side of Lakeshore Blvd. West at that point is quite wide, with a shoulder area permitting parking during the day. The shoulder was however clear of parked cars on that stretch of the road at least leaving a single, broad lane. The area was well lit. There was no adverse weather and visibility was described by multiple witnesses as being good. The posted speed limit in the area was 50 km/hr. There was only sporadic traffic along that stretch of road at that time of morning on that day.

[10] From his car, Mr. Lata noticed a man on a push scooter ahead of him. The driver of the scooter appeared to be swerving back and forth across the right-hand lane. The diagram drawn by Mr. Lata to describe the motion he observed resembles the path of a skier slaloming down a hill – a back and forth motion in smooth arcs across most of the width of the right-hand lane. Mr. Lata was able to see the operator of the scooter far enough in advance to be able to alert him to his presence by sounding his horn. The operator of the scooter acknowledged the warning with a wave of his arm and corrected his path, pulling over to the right side of the lane at which point Mr. Lata was able to pass him safely.

[11] Mr. Footit had no recollection of Mr. Lata sounding his horn at him or of swerving across the roadway in the manner described I accept Mr. Lata’s testimony as sincere and credible and preferable to Mr. Footit’s spotty recollection of the moments immediately prior to the accident in this respect. In so doing, I am not finding Mr. Footit to have lacked credibility – I simply note that his recollection was understandably somewhat spotty.

[12] I find the driver of the scooter observed by Mr. Lata to have been Mr. Footit. There was little to no traffic about at that time and push scooters are comparatively uncommon. It is quite unlikely there were two push scooters abroad on the same stretch of road at the same time.

[13] Mr. Lata did not witness the accident. After passing Mr. Footit, he proceeded down the road a short distance to his destination. He returned to the accident scene some fifteen or twenty minutes later after hearing emergency vehicle sirens pass by. He surmised, correctly as it turned out, that there had been an accident involving the scooter he had seen earlier and returned to the area.

[14] In the same time frame, (shortly after 3 a.m.) Mr. Choithwan emerged from Humber College on the south side of the street and headed towards his home on foot. Mr. Choithwan did witness the incident involving Mr. Lata. I find that he emerged onto the sidewalk a short time after Mr. Lata had already passed by in his car.

[15] Mr. Choithwan proceeded to walk westbound on Lakeshore Blvd. West. He confirmed the good lighting and visibility in the area. He remembers things being so still and quiet on the road that he could hear the sound of what he took to be a skateboard coming down the road behind him. There was no automobile traffic. When he turned to look, he could see a man coming down the road towards him on what appeared to be a skateboard in the west-bound lane. He turned back and proceeded on his way in the company of a friend.

[16] Shortly after resuming walking (westbound and thus with has back to Mr. Footit on the scooter), Mr. Choithwan heard a “thud” behind him. Upon turning around a second time, he saw the person had been hit by a car. He didn’t remark anything in particular about the car beyond having heard the sound of the collision and the fact that the car was pulled over. There were no other cars around nor were there any other pedestrians in view. Mr. Choithwan placed a call to 911 immediately. After taking particulars of the incident from him, the operator gave him instructions on how to assist the victim until help arrived. While talking to the operator, Mr. Choithwan crossed Lakeshore Blvd. West towards the scene of the accident and the victim. He didn’t remark upon a skateboard (or scooter) on the roadway.

[17] Beside the victim, he saw a man whom he took to be the driver of the car rendering assistance. The man was comforting the victim, saying “God loves you” and “Help is on the way”. He was wearing a blue T-shirt and sitting by the accident victim. He may have had been cradling the victim’s head in his lap or was helping him in some way. Mr. Choithwan smelled alcohol as he approached the man and the man’s voice seemed “not straight” to him. Mr. Choithwan stayed near the scene for about fifteen minutes after police arrived and then left.

[18] Mr. Choithwan’s testimony was sincere, credible and in no way embellished. He did not initially report the odour of alcohol or the “not straight” nature of the driver’s tone of voice to police when he gave an email statement shortly after the accident. He had only recently arrived in Canada and was somewhat nervous about dealing with police. His explanation, which I accept without hesitation, is that he simply wasn’t asked the question and would certainly have mentioned these additional details had he been asked.

[19] The defence sought to challenge Mr. Choithwan’s credibility because he described the driver of the car as being of medium height whereas Mr. Hourihan is of above-average height. In my view, such an error in estimating the height of Mr. Hourihan signifies little more than that Mr. Hourihan’s height was not sufficiently remarkable to have been impressed upon the witnesses’ memory if indeed the accused ever stood in Mr. Choithwan’s presence at all. Similarly, I attribute no importance to Mr. Choithwan having described the scooter as a skateboard. The two devices are quite similar with the principal difference of a vertical pole for steering on the scooter that may not have been easily visible from a distance. Mr. Choithwan’s attention was on other things when he approached the accident scene and it is not remarkable that he failed to notice the scooter that police witnesses later noticed lying in the road.

[20] I accept Mr. Footit’s evidence that he was not swerving but was driving on the right side of the roadway at the point where he was hit from behind by a car. Mr. Lata’s evidence was that the operator of the scooter had pulled over the right (and stopped swerving) after he sounded his horn. There is no evidence of alcohol or drugs having impaired Mr. Footit in any way. Having been warned by Mr. Lata, there is no reason to expect Mr. Footit simply resumed the swerving behaviour observed by Mr. Lata as soon as the latter had passed him by. Mr. Choithwan, who observed Mr. Footit from a distance did not remark anything unusual about the conduct of the skateboard (as he described it) on the road moments before the accident. Swerving in the manner described by Mr. Lata would slow the forward progress of the scooter down quite considerably and is more consistent with momentary exuberance than with a considered method of proceeding down the road for more than a short distance. Mr. Footit’s evidence of driving on the right side of the lane is consistent with common sense and is at least partially corroborated by Mr. Choithwan having failed to notice anything different.

[21] There was at another call placed to 911 in respect of the accident apart from that of Mr. Choithwan. At 3:08am, someone identifying himself as “Earl” called and asked for an ambulance. Earl’s voice on the 911 tape sounds slurred. “Earl” told the operator that he was driving a Pontiac and (on different occasions during the same call) told the operator that “some guy just ran in front of my car”. Later he said that “all of a sudden a guy walked in front of me” and “he hit my car”. Still later he said that someone had hit his car with a scooter.

[22] In closing argument, the defence conceded that the Earl on the 911 tape was the accused. The evidence in favour of that finding was at all events overwhelming. I so find. Nevertheless, I find that I can attribute no material weight to these quite inconsistent descriptions of the accident offered by the accused on the tape in concluding as I have above that Mr. Footit was not driving in a swerving fashion at the point where he was hit by the accused.

[23] The parties have agreed that the time of the accident was at 3:06am. Police were dispatched to the scene at approximately 3:08am.

[24] The officers were told there had been a motor vehicle accident involving possible personal injury near the address on Lakeshore Blvd. West. Officers Bhandari and Ivkovic were in the first police car to arrive. They arrived at approximately 3:12 a.m. and observed a single car at the scene (apart from emergency vehicles). It was a Pontiac. Its plate number was recorded and the registration certificate produced at trial showed it to be owned by the accused. There were a few bystanders gathered by that time and paramedics were working on the accident victim. A man, later identified as the accused, was sitting on the curb near where the victim was being worked upon by paramedics.

[25] Officer Ivkovic attended the paramedics and observed the status of the victim. He learned the victim’s name (Mr. Footit) and address. He also observed that the victim’s head had been bandaged and he appeared to be bleeding from the nose. He was not then able to determine more about the extent of the injuries.

[26] Mr. Hourihan was observed seated on the curb nearby. He appeared to be upset and was or had been crying. Officer Ivkovic spoke very briefly to Mr. Hourihan. The contents of that discussion have been excluded from evidence for reasons discussed below. Officer Ivkovic did not note anything in Mr. Hourihan’s demeanor in his short interaction that caused him to suspect alcohol was involved.

[27] Constable Kuznetsov from the Traffic Division was dispatched at 3:11 a.m. shortly after Officers Bhandari and Ivkovic. He would normally have been working 11 Division that night but the Traffic Division officer assigned to 22 Division had already been dispatched to another call. Once at the accident scene, it would be Constable Kuznetsov’s job to supervise the investigation.

[28] Constable Kuznetsov’s police cruiser was equipped with cameras (both inside and facing forward). The time stamp on the video from his cameras (both in the cruiser and later in the station) is sometimes a minute or so different from the time recorded by the police officers who testified after consulting their notes. In such cases, and in order to be consistent, I have referred to the time stamp on the video recordings as authoritative, although nothing turns on the differences which were very minor (generally less than one minute).

[29] Constable Kuznetsov arrived at the accident scene at 3:25am. Mr. Footit had been loaded into the ambulance and it was almost ready to depart. For the next five minutes, he absorbed information gathered by the two officers already at the scene. He learned from them that Mr. Footit had been riding a scooter and been “hit pretty good”, causing damage to the front passenger side hood of the car, but without hitting the windshield. He also learned that Mr. Footit was “pretty banged up”, was “conscious but out of it”. The ambulance left the scene at 3:28 a.m. while Constable Kuznetsov was receiving these reports and making arrangements with his dispatcher to have someone follow up at St. Michael’s hospital to learn the status of Mr. Footit’s injuries.

[30] At 3:30 a.m. Constable Kuznetsov asked if any of the bystanders had seen anything. One person identified himself (he is audible on the tape as the same Mr. Lata who testified at the trial). One of the officers was directed to take his statement. At 3:31 Officer Kuznetsov approached Mr. Hourihan and addressed him for the first time.

[31] It is clear from the tape of the conversation that Constable Kuznetsov suspected that the accused had been drinking within less than a minute of addressing him. He advised dispatch of this suspicion over the radio at 3:32 a.m. and requested back-up. After speaking to the dispatcher, Constable Kuznetsov asked the accused for his license and registration and walked with him the short distance to his car parked on the side of the road to obtain it. At 3:34 a.m. he advised the accused that he suspected he had been drinking and asked him to provide a breath sample to a roadside screening device and told him “you don’t have to tell me anything” and cautioned that anything he did say might be used in court. The test was administered on an Approved Screening Device starting at 3:36am. It took two minutes to administer the test. At 3:38 a.m. the accused failed the test and was placed under arrest and told that the arrest was for “operation over 80”.

[32] The voice of the accused on the recording equipment carried by Constable Kuznetsov and inside his car can be clearly heard when he provided the breath sample on the Approved Screening Device and being processed inside the squad car after being placed under arrest. The voice of the accused appears to be quite distinctly slurred in a number of places.

[33] The balance of the factual chronology relates to matters subject to the two voir dire applications and will be addressed in more detail below.

Issues to be argued

[34] Has the Crown met its burden of establishing the voluntariness of statements made by the accused to Officer Paroussoudi?

[35] Was there a failure to advise the accused of the reasons for his detention in violation of his rights under s. 10(a) and s. 10(b) of the Charter?

[36] Did the alleged delays violate the s. 8 or s. 10(b) Charter rights of the accused?

[37] Do any or all of the alleged breaches of the Charter rights of the accused warrant the exclusion of evidence pursuant to s. 24(2) of the Charter?

[38] Having regard to the admissible evidence, has the Crown met its burden of proving the accused guilty of the offences charged?

Analysis and discussion

(a) Has the Crown met its burden of establishing the voluntariness of statements made by the accused to Officer Paroussoudi?

[39] The Crown brought application to admit as voluntary statements made by the accused in connection with the events of May 28, 2015. Statements made by the accused to a person in authority relating to any of the elements of the offence with which he stands charged, whether exculpatory or inculpatory, are considered to be confessions that are inadmissible into evidence unless the voluntariness of the statements in question is either admitted or proved by the Crown beyond a reasonable doubt.

[40] The statements the Crown initially sought to admit into evidence were:

i. The tape and transcript of the 911 call made by “Earl” and subsequently admitted to have been made by the accused;

ii. Statements to Officer Ivkovic by the accused regarding the driver of the car and how the accident occurred[^1];

iii. Statements to Officer Kuznetsov by the accused regarding the driver of the car and alcohol consumption; and

iv. Statements by the accused to the Qualified Breath Technician, Officer Paroussoudi, regarding alcohol consumption.

[41] The defence conceded the Crown’s application in respect of the admissibility of the tape and transcript of the 911 call made by “Earl” and admitted that the accused was the “Earl” who had placed the call. The Crown withdrew its application in respect of statements made by the accused to Officer Ivkovic and Officer Kuznetsov. Accordingly, I have excluded from evidence for purposes of the trial any statements made by the accused to either officer relating to the identity of the driver of the car, causation of the accident or consumption by the driver of the car of alcohol. I have not however excluded either the observations of the accused made by these officers or the video of the interchanges between the police and the accused (with the exception of the portions relating to the actual statements made by the accused relating to the elements of the charges he faces that have been excluded).

[42] I am therefore only required to review the admissibility of the statements made to Officer Paroussoudi.

[43] The interchanges between the accused and Officer Paroussoudi are captured on the video evidence played at trial. I have of course reviewed the totality of the evidence at trial (this having been a blended proceeding) including all of the interchanges between the accused and the police preceding his interview with Officer Paroussoudi. Substantially all of these interchanges are recorded. The defence admitted that nothing related to the voluntariness of the statements made by the accused to Officer Paroussoudi occurred off-tape.

[44] It is clear from the evidence that neither Officer Paroussoudi nor anyone else oppressed the accused or made threats of any kind to induce him to speak. I am quite satisfied that Mr. Hourihan’s will was in no way dominated or controlled by Officer Paroussoudi or anyone else when he determined to make the statements he made to her.

[45] Officer Paroussoudi saw Mr. Hourihan for the first time mere moments after he finished consulting with duty counsel. She notified him quite clearly that the office in which she administered the breath sample test was subject to recorded camera observation. There was a prominent warning to that effect that was shown to him and read aloud. She warned him that she would be asking him questions and that he was entirely free to answer or not to answer each question. She told him that he could have her move to the next question if he wished. All he needed to do was say “next”.

[46] It is suggested that I ought to find Officer Parousoudi’s questioning technique to have nullified the otherwise apparently voluntary nature of the statements made by the accused before her. Two aspects of her questioning were raised.

[47] Firstly, while Officer Paroussoudi prefaced the questions she posed to the accused with a warning that he did not have to answer any of them, she did not advise him that the answers given may be taken down and used in evidence against him. As a result of this failure, the defence submits, the apparent consent of the accused to make the statements he made was not informed consent since he did not know what was at stake when he spoke to her: R. v. Worrall, 2004 66306 (ON SC).

[48] In my view, Worrall is quite distinguishable. In that case, the accused volunteered information at a point where the police had information making him a potential suspect in an unlawful act – use of heroin - that may have been connected to the death they were investigating. They did not caution the accused nor share that information with him. The accused spoke to the police without any understanding of the potential jeopardy he was facing. The information deficit was plain, obvious and highly material. The accused in the present case had already been arrested and given a full caution including a warning that he was being recorded and anything he said could be used in court. He was being detained and held in a police station, interrogated by a uniformed officer. He had exercised his right to counsel only moments before speaking to Officer Paroussoudi. The accused fully understood that he had been arrested in connection with operating a motor vehicle “over 80”. He understood that he was not required to answer any questions at all. He understood that his words were being recorded and filmed by the police in whose custody he was being held. He cannot have failed to appreciate fully that his statements might be used in court against him whether or not he was reminded of this last fact by Officer Paroussoudi. He knew what was at stake.

[49] Secondly, Officer Paroussoudi advised the accused that she would be asking questions that were “mostly” health-related. She then proceeded to ask a number of questions some of which clearly related to the investigation and not the health of the accused. It is suggested that this method of questioning somehow tricked the accused or lulled him into a false sense of complacency. I cannot find that the manner of questioning tricked the accused or in any way deprived him of his operating mind. While questions relating to the investigation were asked by Officer Paroussoudi, she also did ask a number of clearly health-related questions as she said she would. There was no misrepresentation of the nature of the questions. She did not represent that only health-related questions would be asked. Police are permitted to investigate. In investigating, they may interrogate the accused providing that they do not use improper or coercive techniques to overcome the accused’s right to decline to provide active assistance to that investigation. The accused was subject to no pressure or coercion and could easily have said “next” to avoid answering any of the questions. He freely chose not to and made that choice mere minutes after speaking to counsel.

[50] I am left in no doubt that the statements made by the accused to Officer Paroussoudi were made voluntarily and are thus admissible. It is of course another matter entirely to consider whether those same statements ought nonetheless to be excluded by reason of one or more alleged Charter breaches. The Crown however has discharged its burden of proving voluntariness beyond a reasonable doubt.

(b) Was there a failure to advise the accused of the reasons for his detention in violation of his rights under s. 10(a) and s. 10(b) of the Charter?

[51] The accused was initially arrested at 3:38 a.m. on May 28, 2105 by Officer Kuznetsov for operating a motor vehicle “over 80”. To this charge was added that of impaired driving at approximately 7 a.m. shortly before releasing the accused from detention. It was not until July 23, 2015 that the more serious charges of causing bodily harm while driving “over 80” or impaired were added.

[52] The accused submits that, at the time he was arrested by Officer Kuznetsov at 3:38 a.m. and at all events by the time the breath samples were taken (4:49 a.m. and 5:15 a.m. respectively), the police knew or ought to have known that Jesse Footit had suffered bodily harm in the accident and either failed to arrest the accused on the more grave offences or to inform him of the fact that he was at risk of being subjected to the more serious charge. The failure to inform the accused of the charges he now faces left him, the accused alleges, at an informational deficit when exercising his rights under s. 10(b) of the Charter of sufficient gravity to substantially deprive him of that right.

[53] The accused submits that this court cannot speculate as to how the legal advice the accused did seek and receive prior to submitting a breath sample might have been different had the informational deficit not existed: R. v. Black, [1989] 2 S.C.R. 138, 1989 75 at para. 26. What was required was that “the accused understand generally the jeopardy in which he or she finds himself and appreciate the consequences of deciding for or against counsel”: R. v. Smith, [1991] 1 S.C.R. 714, 1991 91 at para. 26. The accused relied quite heavily upon the decision of Trotter J. (as he then was) in R. v. Karafa, 2014 ONSC 2901 to suggest that the accused was at an informational deficit relative to the police when he waived his right to consult counsel leaving him in ignorance of the true jeopardy that he was in.

[54] That there is a difference in potential jeopardy between the charges before me and the charges laid on May 28, 2015 is clear. The penalty for impaired driving or driving “over 80” under s. 253(1) of the Criminal Code is up to five years whereas that for causing bodily harm while driving impaired or “over 80” is twice that (s. 255(2) and s. 255(2.1) of the Criminal Code): s. 255(1), s. 255(2) and s. 255(2.1).

[55] There is no dispute that Mr. Hourihan was not in fact charged with the more serious offences until almost two months later. The issue raised is whether police knew sufficient facts before taking the breath samples either to have made the more serious charge or to have advised the accused of the possibility of the more serious charge and thereby to have afforded him the right to counsel armed with that additional information.

[56] The first step in the analysis is to consider what the police knew and when they knew it and compare this to what the accused knew when seeking legal advice immediately prior to the giving of a breath sample.

[57] At the accident scene, Constable Kuznetsov obtained a summary of the information gleaned by the two officers who were already there (Officers Bhandari and Ivkovic). The accused had been loaded into a stretcher – a circumstance that in and of itself was fairly routine. The ambulance was on the verge of departing for St. Michael’s hospital. That destination was potentially a signal of somewhat elevated concern about the level of injury, but only potentially so. The victim had been observed with a head bandage, some bleeding from the nose. He was further described as having “hit his head pretty good” and being “out of it”. A dent was observed on the Pontiac – assumed to be the one that hit him – but it did not appear that he had gone as high as the windshield.

[58] Constable Kuznetsov requested that someone be sent to St. Michael’s hospital to follow up on the status of the victim.

[59] Officer Silva was the person sent to St. Michael’s hospital to check on the status of Mr. Footit. He arrived at the hospital at approximately 4am. Soon after arriving, he learned that Mr. Footit had sustained a broken arm and was being investigated as to possible head injuries. He did not make a report back to the station at that time but waited a further hour to receive an additional report about the nature of the possible head injuries from the attending physician after a CAT scan had been performed. At this time he learned of the concussion and brain bleeding and made his report (somewhere between 5:00 a.m. and 5:30 a.m.).

[60] Officer Silva’s knowledge of a broken arm was thus not shared with Constable Kuznetsov before the breath samples were taken from the accused at 22 Division.

[61] I find that the arresting officer Constable Kuznetsov had a suspicion that Mr. Footit may have sustained a serious injury but he had no confirmation of those suspicions before the breath samples were taken. The visible physical injuries were confined to scrapes and some bleeding from the nose and were themselves apparently minor. There was no indication at the accident scene of a broken arm. Head injuries are of course potentially worrisome, but he had no concrete information about how serious a head injury, if any, was involved at that point. He had a suspicion of the possibility of a serious injury, but it was far from a certainty that the suspicion would be borne out in fact.

[62] Constable Kuznetsov did not consider the information he then had to warrant elevating the charge to one of causing bodily harm. Whether rightly or wrongly (as a matter of law), Constable Kuznetsov was of the view that evidence of a serious injury – whether life threatening or broken bones – would be required in order to elevate the “over 80” charge he had arrested the accused with to one of causing bodily harm. He had (prudently) arranged for follow-up to check on the status of Mr. Footit at the hospital. He didn’t have anything back from that follow-up while processing Mr. Hourihan at the station and arranging for his breath sample. He had no reason to believe that a report was either imminent or, if received, would be material in terms of altering the charge he had made to a more serious one.

[63] I turn now to consider what the accused can be considered to have known. The sources of information of this are of necessity limited, but not non-existent.

[64] From the tape of the 911 call, I would conclude that the accused had a high level of fear that Mr. Footit may have suffered a very serious injury indeed. In the course of the call, he variously described Mr. Footit as: (i) being “out of control”, (ii) awake but “barely breathing”; (iii) then unconscious[^2]; (iv) “he is not okay. He is hurting”; (v) awake breathing; (vi) “unconscious” and “not in pain”; and (vii) “he is OK”. He was observing Mr. Footit closely enough to be reporting minute changes almost second by second to the 911 operator before paramedics arrived.

[65] After the paramedics went to work, the accused sat on the curb and was visibly upset and crying. It was in this state that Officer Ivkovic observed him a few minutes later. He observed Mr. Footit being removed by ambulance. After being arrested by Constable Kuznetsov and placed in the police car, Mr. Hourihan twice asked whether the young man was going to be OK. His voice betrayed genuine concern and worry. On the second occasion, Constable Kuznetsov advised the accused – quite sincerely in my view – “he was hurt – I don’t know how severe”.

[66] There was no information deficit regarding the actual state of injuries of Mr. Footit as between Officer Kuznetsov and the accused prior to the accused consulting counsel and the breath samples being taken. Both were worried that the injuries might prove to be severe, but neither had confirmation of that fact.

[67] The defence submits that I ought to look at the totality of the information possessed by the police, regardless of whether it was in the hands of those making decisions relative to the charging of Mr. Hourihan or his access to legal advice. That may be so if there was information that the responsible officers ought to have known but failed to learn due to some lack of dilgence. However, I cannot simply assume that in all cases any piece of information known to one agent of the state is simultaneously deemed to be known by all and for all purposes.

[68] Officer Silva had no reason to believe that the initial report he received shortly after 4 a.m. was time sensitive. He did not know whether this would result in an upgrading of the charge made. He didn’t know whether the accused had yet consulted counsel or provided a breath sample. He decided to make his report all at once rather than in pieces. The possible head injury was potentially more serious and he decided to wait for that additional data before reporting. His biggest concern was to determine if there were life-threatening or serious injuries and this information depended upon the outcome of the neurological tests that he decided to wait for.

[69] There is a tendency in Charter review cases of this sort to fall into the trap of engaging in a minute-by-minute dissection of every single step taken in a dynamic situation. Nobody is held to a standard of perfection by the Charter and that includes the police. I do not find that Officer Silva ought to have reported the broken arm sooner than he did nor that Constable Kuznetsov or Officer Paroussoudi ought to have delayed matters to seek a report from him. That is the counsel of hindsight whose clear vision none can aspire to.

[70] The accused consulted counsel prior to giving a breath sample equipped with the knowledge of his right to do so. He had an accurate statement of the charge upon which he had been arrested. He had reason to be worried about the possibility that Mr. Footit may have been severely injured. The police had no greater information than he. The added jeopardy that the accused points to in this case is in reality the product of legal risk analysis that a worried Mr. Hourihan had very opportunity to discuss with his counsel.

[71] I certainly cannot assume that he failed to discuss these matters with counsel any more than I can assume that he did. The conversation is subject to privilege and the accused is under no obligation to testify. However, there was no withholding of information by police. There was no trickery or deception. Constable Kuznetsov did not lay the lighter charge intending to hold the more serious one in reserve or anything of the sort. He laid the charge that appeared to him reasonable in the circumstances. This case in no way resembles Karafa.

[72] In Smith, McLachlin J. (as she then was) noted that “it has never been suggested that full information is required for a valid waiver….in the initial stages of an investigation the police themselves may not know the precise offense with which the accused will be charged” (at para. 27). While this is not a waiver case, the same reasoning applies with greater force here.

[73] It serves no public interest to suggest – as the accused would have me do – that the police must arrest an accused immediately on the most serious possible charge or forever hold their peace. Overcharging is not a virtue to be fostered and certainly needs no encouragement. There was no subterfuge or impropriety entailed in taking the time to complete the investigation and assemble all of the information necessary to take the decision to proceed with the more serious charge. To the contrary, this was reasonable and prudent. Neither s. 10(a) nor s. 10(b) of the Charter requires early disclosure of possible future charges that might be considered subject to further investigation. At the time Mr. Hourihan gave samples of his breath in the early morning hours of May 28, 2015, there was no certainty that the more serious charges would be justified let alone proceeded with. There was not even a probability. There was, at most, a risk of doing so that depended upon investigations still underway the outcome of which were not yet known.

[74] In my view, the accused had an adequate understanding of the jeopardy he faced when consulting counsel. I find no information deficit on the facts that rises to the level of having substantially frustrated or defeated his recourse to legal advice prior to deciding whether to provide or withhold the requested breath sample. This aspect of the accused’s application is therefore denied.

(c) Did the alleged delays violate the s. 8 or s. 10(b) Charter rights of the accused?

[75] The accused submits that, by reason of certain delays in obtaining a sample of his breath, the samples taken were not taken “as soon as practicable” as required by s. 254(3) of the Criminal Code. As such, the accused submits that the compelled seizure of samples of his breath was not authorized by the Criminal Code and should be found to be an unlawful search or seizure contrary to s. 8 of the Charter.

[76] The accused also submits that alleged delay in granting him access to counsel following his detention was a breach of right to counsel under s. 10(b) of the Charter. Both issues focus on essentially the same series of alleged delays and will be considered by me together.

[77] I am urged to find that the periods of delay highlighted by the accused when considered cumulatively amounted to a substantial deprivation of the rights of the accused under s. 8 and s. 10(b) of the Charter.

[78] Since section 10(b) Charter rights arise when a person is arrested or detained, I must first determine when the accused was detained.

[79] I was urged to find that the accused had been detained by Officer Ivkovic shortly after his arrival at the accident scene at 3:12am. Officer Bhandari and Officer Ivkovic were dispatched to the accident scene at approximately 3:08 a.m. and arrived at approximately 3:12am. Somewhere between 3:12 a.m. and the arrival of Constable Kuznetsov on the scene at 3:25am, Officer Ivkovic spoke to the accused for a brief period - less than a minute. He did not then advise Mr. Hourihan expressly or impliedly that he was being detained. Although the accused identified himself to Officer Ivkovic verbally, there is no evidence that he was asked to produce his license or registration by Officer Ivkovic. Officer Bhandari did not speak to the accused at all. Despite a determined effort to suggest the contrary on cross-examination, neither officer arrived at the scene with any particular suspicion that the accused had consumed alcohol nor did Officer Ivkovic observe anything in his brief interaction with the accused that caused him to suspect he had.

[80] Officer Ivkovic responded to a hypothetical question on cross-examination that he would have detained the accused if had he made to leave. However, there is no evidence that the accused in fact attempted to leave or that he was in fact instructed to remain. There is no evidence he was given any instructions at all. The accused has not testified as to his state of mind and I cannot draw inferences about the state of mind of the accused from hypothetical questions.

[81] I find that the accused was not detained before the arrival of Officer Kuznetsov at 3:25 a.m.

[82] Constable Kuznetsov spoke to the accused for the first time at 3:31 a.m. and formed a suspicion the accused may have been drinking within less than a minute. He asked the accused for his vehicle registration. While the accused went to his car to retrieve the documents, Constable Kuznetsov stepped aside and advised dispatch of his suspicion that Mr. Hourihan had been drinking and asked for back-up. From the point where Mr. Hourihan was asked to retrieve his papers from the car in circumstances where there was a clear suspicion that he had been drinking, I find that Mr. Hourihan was detained at this point. He was thereafter operating under police direction. This occurred at 3:32 a.m.

[83] By 3:34 a.m. Constable Kuznetsov had made a demand for the accused to submit to a roadside test with an approved screening device and asked him to accompany him back to the police car for that purpose. Over the following ten minutes, the accused provided a sample of his breath into an Approved Screening Device and was placed under arrest and had his rights explained to him. A formal demand for a breath sample pursuant to s. 254(3) of the Criminal Code was made at 3:44 a.m.

[84] Having reviewed the audio and video evidence of this time frame, I am quite satisfied that there was no delay or lack of diligence displayed in the thirteen minutes of elapsed time between Constable Kuznetsov first formulating a suspicion of alcohol until the formal demand for a sample was made at 3:44am. The accused was processed from suspicion to s. 254(3) Criminal Code demand all in a direct and efficient fashion.

[85] The accused submitted that Constable Kuznetsov ought to have given the accused his right to counsel before conveying him to the police station. There may well be circumstances where that would be a reasonable and practical alternative. This was not one of them.

[86] Firstly, it should be noted that the accused initially declined to exercise his right to counsel when the right was explained to him in the police car following his arrest at 3:42am. It was only when Constable Kuznetsov inquired further that the accused decided that he wished to talk to duty counsel at the station after all. He made no request for immediate access.

[87] Secondly, the police cruiser where the accused was then detained is equipped with recording devices. The police station was the logical place to convey accused since it is equipped with telephones and secure rooms where confidential conversations can be facilitated.

[88] I do not accept that failure to improvise a secure means of communicating with duty counsel immediately upon placing the accused under detention or arrest was a violation of his s. 10(b) Charter rights. Indeed, on at least one occasion in the police car, Constable Kuznetsov stopped the accused from discussing the accident. He displayed exemplary sensitivity to the importance of respecting the s. 10(b) Charter rights of the accused.

[89] From this point forward, the alleged delays in providing access to counsel were co-extensive with the alleged delays in obtaining the breath samples of the accused “as soon as practicable”. I shall now examine the delays between the demand for a breath sample and the taking of the sample in the light of s. 8 and s. 10(b) of the Charter.

[90] Determining whether a breath sample was taken “as soon as practicable” does not require me to engage in the sort of minute-by-minute analysis I was invited to engage in by the accused. The availability of good quality audio and video evidence of almost every second of relevant elapsed time should not be taken as license to engage in excessive use of hindsight criticism of actions taken in real time and in the field. What I am looking for in undertaking this review is to determine whether the process of proceeding from suspicion to demand to sample was undertaken with reasonable directness and with due regard to the Charter rights of the accused. These include his right to counsel and his right to be detained to the minimum degree reasonably necessary. This does not mean that every suspect from whom a sample is demanded must needs be conveyed to the station for testing with sirens blaring from the first moment alcohol is suspected nor that every other task and priority must be abandoned in favour of this imperative. “As soon as practicable” must be assessed in context.

[91] In the present case, for example, Constable Kuznetsov had to make arrangements to to secure the scene and to continue the investigation of the accident. As well, he spent five or six minutes entering data about the arrest into the on-board computer before bringing the accused in to the station. Both of these were reasonable uses of time in the context. Five or six minutes to enter pertinent arrest data into the computer may be reasonable where thirty or forty minutes to prepare an entire arrest report, for example, would not be. It is necessary to have regard to the overall context.

[92] Constable Kuznetsov spent six minutes driving towards the wrong station in what was a simple instance of human error – one that was quickly noted and corrected. At a different time of day, his drive to the station might have taken quite a bit longer even without that error. He was conveying the accused to the station and had no other priority. His minor navigation error cannot be characterized as a deprivation of Charter rights and does not convert a lawful seizure of a breath sample into an unlawful one.

[93] There was a further delay in gaining access to the sally port at the booking hall. There was one car in line and another being processed. Constable Kuznetsov succeeded in moving up in line due to the time-sensitive nature of his task. As soon as the car being processed in the sally port exited, he was allowed to enter. All aspects of the processing of the accused form arrival at 22 Division were orderly, reasonably efficient and swift.

[94] At the station where the breath sample was to be taken, the exercise by the accused of his s. 10(b) Charter rights accounted for twenty-one minutes of the total delay inside the station (including sixteen waiting for duty counsel to return the call). He was brought to the testing room within about two minutes thereafter and the process of procuring the first sample by Officer Paroussoudi proceeded without delay. The first sample was completed at 4:49am, but the accused had entered the room to start the process at 4:42am. The second sample was also taken without delay. The minimum interval under s. 258(1)(c) of the Criminal Code is fifteen minutes, the machine is prudently set to require a minimum interval of 17 minutes. Mr. Hourihan was led into the room to start the process of procuring the second sample twenty-one minutes after completing the first (only four minutes longer than the minimum interval programmed into the machine). The brief additional delay being entirely explained by the distance between where the accused waited and the room where the sample was taken as well as the time required to complete a sample being taken from another person.

[95] It is clear to me in this case and in this context that Constable Kuznetsov was, from the moment suspicion of alcohol consumption first arose, focused directly upon processing the accused in an orderly and swift fashion with a view to confirming his suspicion through an ASD and then obtaining the demanded breath sample as soon as practicable after he made the demand. There was no failure to accord this task appropriate priority. He was both diligent and sensitive to the Charter rights of the accused at each point throughout. The total delay from the demand for a breath sample (3:43am) until the accused was given access to counsel (4:20am) and then led into the room to begin the process of taking the breath sample (4:42am) was almost exactly one hour, twenty-one minutes of which were accounted for by the accused exercising his right to counsel. The time from detention (and first suspicion of alcohol having been consumed) until formal demand for a breath sample was also brief, direct and focused: 12 minutes. There is no period of unexplained delay in this case. I have been able to examine virtually every minute. There was no failure to afford reasonable and appropriate priority to the Charter rights of the accused.

[96] I find that the process of securing the breath sample from the accused was reasonable and diligent and that the sample obtained was taken “as soon as practicable”. Accordingly, I find that there has been no breach of s. 253(3) of the Criminal Code in procuring the two breath samples from the accused. The seizure of those samples was therefore authorized by law and was not an unauthorized search or seizure contrary to s. 8 of the Charter.

[97] I also find that any delays in processing the accused and providing him with his access to counsel were reasonable in the circumstances and did not violate his rights under s. 10(b) of the Charter either.

[98] The Charter application of the accused is accordingly dismissed.

(d) Do any or all of the alleged breaches of the Charter rights of the accused warrant the exclusion of evidence pursuant to s. 24(2) of the Charter?

[99] I have not found that any of the breaches of the Charter rights of the accused as alleged have been established. I shall however provide a brief analysis of the evidence in light of s. 24(2) of the Charter in the event I have been in error in those findings.

[100] The three criteria to be assessed in deciding what remedy should be applied where a breach of Charter rights is made out are well-established. The exclusion of evidence sought by the accused is by no means the only or an automatic consequence of finding the existence of a breach of his Charter-protected rights. The court must consider (i) the seriousness of the Charter-infringing state conduct; (ii) the the impact of the breach on the Charter-protected interests of the accused; and (iii) society’s interest in the adjudication of the case on its merits: R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32.

[101] The accused has alleged two separate types of state conduct alleged to have breached his Charter rights: the failure to disclose the possibility of a more serious charge and delay (both in procuring the breath samples and in granting the right to counsel).

[102] I consider that the gravity of the “failure to explain” breach is of a considerably lesser nature than the deceptive breaches found in cases such as Karafa. If there was a failure to alert the accused to the possibility of graver charges, this was not due to a concerted effort to conceal or deceive him. It is more readily ascribed to a prudent desire to give the accused the benefit of the doubt and to make the graver accusation only after proper investigation and consideration. The state stood to gain nothing from withholding the information it is alleged to have withheld. Its right to the breath sample was not in doubt and there is no reason to expect confessions to trip more readily from the lips of an accused facing “only” five years in jail as opposed to ten.

[103] The various forms of delay highlighted by the accused here were similarly not instances of a concerted effort to deprive the accused of rights or to disregard those rights. I find the seriousness of the alleged Charter-infringing state conduct to be on the lower end of the threshold when compared to other cases.

[104] The second Grant criterion requires me to examine the impact of the alleged breaches upon the Charter interests of the accused.

[105] There is nothing before me to suggest that the “information deficit” said to have nullified the exercise by the accused of his right to counsel was anything of the sort. The accused knew all or substantially all of the facts known to police[^3] relative to the potential for a more serious charge when consulting counsel. Mr. Hourihan certainly knew of the possibility of bodily injury and was obviously quite worried about the question as evidenced by his two queries while inside the police cruiser to that effect. .

[106] As regards the various elements of delay alleged, it is to be noted that none of these had the effect of depriving the accused of the effective right to obtain legal advice before determining whether to co-operate with the police investigation. The accused did consult with counsel before providing the requested breath samples at the station. There is no causal connection to be drawn between the evidence of the breath samples and the alleged failure to provide timely access to counsel. The delay may have resulted in the detention of the accused being slightly longer than it may have been without such delay. However, the aggregate time of detention was well within reasonable norms and the delay that is most susceptible to criticism is brief and entirely unintentional.

[107] None of the delay was the product of a calculated or deliberate disregard for the Charter rights of the accused. Excluding the breath evidence obtained here would tend to diminish and not enhance the fundamental rights enshrined by the Charter in my view. It would tend to encourage an inappropriate trivialization of those rights more appropriate to pizza delivery promises than the serious business of processing an arrest on a serious charge at an accident scene in a diligent and professional manner.

[108] Turning to the third Grant criterion, a number of factors enter into the balance. Firstly, as noted below, I have found that the accused is guilty of the offence charged under s. 255(2) of the Criminal Code (impaired driving cause bodily harm). The breath sample evidence does not figure into the factual inquiry that leads to that finding. As such, the exclusion of the breath sample evidence sought by the accused is, in that limited sense, immaterial. On the other hand, if the only Charter breach made out were to be the failure to advise of the increased jeopardy of “over 80” causing bodily harm, the Crown submits and I agree that it is open to the Court to fashion a more appropriate remedy under s. 24(1) of the Charter by staying the more serious charge (that the accused was not advised of) and proceeding only with the included offence under s. 253(1)(b) of the Criminal Code. The accused was advised of this (included) offence and had every opportunity to obtain legal advice in relation to it.

[109] In my view, the Grant analysis weighs strongly against excluding the breath evidence in this case.

(e) Having regard to the admissible evidence, has the Crown met its burden of proving the accused guilty of the offences charged?

[110] The Crown is required to prove each element of the charges made beyond a reasonable doubt. It is fundamental that the accused bears the onus to establish nothing. The indictment charges offenses under s. 255(2) and s. 255(2.1) of the Criminal Code, offences that in turn require proof of offences under s. 253(1)(a) and (b) of the Criminal Code respectively.

(i) “operates a motor vehicle” (s. 253(1) Criminal Code)

[111] The first element of both offences that must be established is whether Mr. Hourihan has been proved to have been operating a motor vehicle at the relevant time.

[112] The facts as I have found them can leave no room for any doubt. Mr. Hourihan was the driver of the Pontiac automobile that struck Mr. Footit that morning.

(ii) “while the person’s ability to operate the vehicle …is impaired by alcohol” (s. 253(1)(a) Criminal Code)

[113] The Crown is not required to prove any particular level of impairment under s. 253(1)(a) of the Criminal Code, but it must demonstrate the existence of some impairment by reason of drugs or alcohol beyond a reasonable doubt: R. v. Stellato, 1993 3375 (ON CA); aff’d [1994] 2 SCR 478, 1994 94 (SCC).

[114] In my view, the Crown has proved beyond a reasonable doubt that the ability of the accused to operate the motor vehicle in question was impaired by alcohol at the time of the accident.

[115] Circumstantial evidence is often the only way to establish impairment. Such evidence must be viewed as a whole. Individual elements of evidence may be insufficient if dissected in isolation but collectively may paint a compelling picture that admits of no reasonable doubt. This is such a case.

[116] Where logic and common sense lead to a conclusion, I am not required to speculate about other possible causes in the absence of evidence supporting a competing explanation. That true statement however must be subject to a strong caveat that I must ensure that the burden that lays upon the Crown is not in any way shifted simply because the accused chose not to offer an explanation at trial.

[117] The first element of such evidence that I have considered is the unexplained nature of the accident.

[118] The eye witnesses described the lighting and visibility at the scene of the accident to be quite good. Recognizing as I do that the view of a camera does not necessarily mimic the view of the human eye (particularly as to lighting), I note only that the oral testimony of the witnesses about the good visibility is at least partly corroborated by the video evidence from Constable Kuznetsov’s car after the departure of the ambulance and another police vehicle. Pedestrians and vehicles are clearly visible for a considerable distance, including beyond the range of the vehicle headlights. I can attach only very modest weight to the video evidence as to lighting. Nevertheless, it does show a level of clarity and visibility of the accident scene similar to that described by the eye witnesses and can be used to that limited extent.

[119] The area of the accident was also entirely free of any visual obstructions. The night was so still and quiet that Mr. Choithwan could hear the wheels on Mr. Footit’s scooter from a distance behind him. There were no cars coming in either direction when the accident occurred. There were no parked cars. The right-hand lane was a wide one (with a shoulder area for parking that was itself free of cars) and a free left-hand lane was also available to avoid a collision.

[120] Even a swerving Mr. Footit slaloming down the right-hand lane was sufficiently visible to Mr. Lata a few minutes earlier that he had the time to alert Mr. Footit with his horn, observe Mr. Footit acknowledge the alert and move over allowing Mr. Lata thereafter to pass him in safety.

[121] It is clear to me that Mr. Footit was there to be seen. Even without reflective clothing or lights on his scooter, he should have been quite visible to an ordinarily attentive and prudent motorist. There is no credible explanation as to why he was not. The accused is not obliged to offer one, but I cannot be required to speculate about scenarios for which there is no evidence either.

[122] Accidents happen and they happen to sober drivers as well as impaired ones. The unexplained nature of the accident is by no means conclusive evidence of impairment or impairment due to alcohol. It is, however, a piece of the puzzle.

[123] The second element I have considered is the evidence of consumption of alcohol and signs of impairment arising from that consumption.

[124] The evidence of the accused having consumed some amount of alcohol is overwhelming. Mr. Choithwan detected its odour about the accused moments after the accident and his evidence was in my view compelling and credible. Hospital blood tests of Mr. Footit confirmed that the alcohol Mr. Choithwan detected did not emanate from the accident victim. Constable Kuznetsov detected the odour of alcohol soon after interacting with the accused and is observed commenting to that effect on camera within moments of first speaking to him. Officer Paroussoudi also smelled alcohol upon the accused when he came into her room to conduct the breath sample. The accused admitted to having consumed alcohol to Officer Paroussoudi, albeit many hours earlier.

[125] I have no hesitation in finding that the accused had consumed alcohol prior to taking the wheel early that morning and sufficiently close in time to doing so that the odour of it remained distinctly detectable upon him for almost two hours after the accident. Evidence of consumption of some alcohol by itself does not demonstrate consumption of any particular amount of alcohol nor does it demonstrate impairment. However, this circumstance may be combined with others to support a logical common sense inference.

[126] There is nothing in the evidence to rebut the natural and common sense inference that the consumption of alcohol and the operation of the motor vehicle by the accused were both conscious and voluntary acts on his part. I so find.

[127] There is also compelling and overwhelming evidence that alcohol consumed had resulted in a degree of impairment in the accused. Mr. Choithwan described Mr. Hourihan’s voice as being “not straight” when he heard him speaking only moments after the accident. Both Constable Kuznetsov and Officer Paroussoudi noted numerous signs of impairment in their dealings with the accused. His voice was slurred, his eyes appeared red and face flushed. Their evidence in this regard is amply confirmed by the audio and video evidence.

[128] One suggested sign of impairment that I reject however was the suggestion by Officer Paroussoudi that the handling by the accused of the mouthpiece for the breath sample betrayed a lack of fine motor skills. I re-examined the tape of that interchange and found that his handling of the plastic wrap was no clumsier than might be expected of a sober person attempting to decode the maddening secret to opening a typical bag of chips. Indeed, Officer Paroussoudi herself removed the plastic for the second test in about the same time. That particular impromptu test of fine motor skills appears to me to be an unreliable indicator of impairment.

[129] The voice of “Earl” on the 911 tape was quite slurred at times and exhibits considerable confusion, even making allowances for the shock of the moment. The evolution of the explanation given by the accused to the operator about how the accident occurred, for example, suggests an attempt to assemble a coherent excuse that would avoid blame. That effort however emerged in a confused and ultimately contradictory manner due to the significant level of impairment that was quite evident in his slurred voice.

[130] Further slurring and symptoms of impairment in speech persist inconsistently throughout the taped portions of the evidence played in court.

[131] The unexplained nature of the accident, the odour of alcohol, the slurred speech, the flushed complexion and glassy eyes – all of these in combination paint a compelling picture of impairment by reason of alcohol consumption.

[132] I have considered whether any circumstances or explanations may raise a reasonable doubt in my mind as to whether the accused was impaired by alcohol when operating his motor vehicle at the time of the accident.

[133] It was suggested that the accused may possess voice mannerisms that could be mistaken for slurring brought on by impairment. The accused of course did not testify and I have no evidence before me that he in fact possesses any such voice impairment or mannerism. Further, my review of the whole of the evidence before me requires me to reject such a speculative suggestion. The accused could summon the concentration required to speak relatively clearly and distinctly on some occasions while lapsing into heavier slurring only moments later. The slurring observed by the witnesses and recorded on tape was no mannerism but a display of signs of impairment.

[134] I have considered the fact that Officer Ivkovic failed to remark upon any signs of alcohol consumption. However, I find that this is not inconsistent with the evidence of the other witnesses and does not overcome the video and audio evidence described above. Officer Ivkovic spoke to the accused for only a few moments. There is no evidence that the accused even stood to talk to him. He was either crying or had just finished crying. Officer Ivkovic at that point was focussed on other matters, especially gathering information to help the paramedics. In the circumstances I find no inconsistency in Officer Ivkovic failing to detect the signs of alcohol consumption or impairment in the accused that were more apparent to others who had better and longer opportunities to observe him, particularly after he had stopped crying and become calmer.

[135] I have considered whether many of the signs of impairment reported upon by various witnesses could also be attributed to the fact that the accused had been distraught and crying. While the accused did not testify, Officer Ivkovic did confirm that the accused had been crying. That factor alone cannot explain away the 911 tape or Mr. Choithwan’s observations neither of which were affected by crying. By the time Constable Kuznetsov arrived, the accused was considerably calmer but continued to display marked signs of impairment such as a flushed face, slurred speech and glassy, red eyes for some time.

[136] I have considered whether the late hour and sleepiness could account for some or all of the observed behaviour and conclude that it does not. Officer Paroussoudi noted that the accused appeared drowsy and conceded that this might have been due to the late hour. Even if some of the evidence of the physical appearance of the accused might be ascribed in part to drowsiness, this does not begin to explain the cumulative impact of all of the evidence. Fatigue may have exaggerated some of the signs of alcohol impairment, particularly in the later stages (before Officer Paroussoudi), but it did not create them. As well, the presence of fatigue can itself be a symptom of alcohol consumption (albeit an equivocal one given the alternative construction possible).

[137] None of these circumstances has raised a reasonable doubt in my mind. Considering the totality of the evidence, I find that the charge that the accused was impaired by alcohol while operating his motor vehicle at the time of the accident is proved on the evidence before me beyond a reasonable doubt. While none of the factors viewed individually may be sufficient to found a conclusion of impairment by alcohol, a consideration of all of the factors in combination leads logically and inexorably to that one conclusion and there is no credible evidence of another explanation.

(iii) “having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood” (Criminal Code, s. 253(1)(b))

[138] Pursuant to s. 258(1)(c) of the Criminal Code, where samples of the breath of the accused have been taken pursuant to a demand under s. 254(3), evidence of the results of the analysis so made is conclusive proof that the concentration of alcohol in the blood of the accused at the time of the offense was the lower of the two results registered (if different results are obtained).

[139] The conditions for the application of s. 258(1)(c) of the Criminal Code have all been satisfied by the Crown in this case.

[140] The samples were taken as soon as practicable after the time when the offense was alleged to have been committed and, in the case of the first sample, within two hours of the alleged offence. There was an interval of at least fifteen minutes between the time the two samples were taken.

[141] In my analysis of the Charter application by the accused, I have concluded that the breath samples were obtained as soon as practicable after the demand was made pursuant to s. 254(3) of the Criminal Code. I also found that there was no delay in confirming the existence of reasonable and probable grounds and the making of the demand after the accused was detained. I shall not repeat that analysis here.

[142] The evidence of Officer Paroussoudi, her certificate and the video evidence all establish that the accused provided each sample directly into an approved instrument operated by a qualified technician and that the samples were analysed by means of an approved instrument operated by a qualified technician. The conditions of s. 258(1)(c) of the Criminal Code having been satisfied, the certificate and evidence of Officer Paroussoudi is conclusive proof of the fact that the accused had a concentration of alcohol in his blood at the time of the offence of 110 milligrams of alcohol in 100 millilitres of blood.

[143] There has been no evidence of malfunctioning of the instrument led.

[144] In the event any of the conditions of s. 258(1)(c) of the Criminal Code were not fully satisfied, the Crown also filed in evidence the expert opinion of a toxicologist, Mr. Jean-Paul Palmentier. The evidence of Mr. Palmentier was delivered by way of “Toxicology Letter of Opinion” by agreement between the parties. That agreement was, of course, subject to the application of the defence to exclude from evidence the results of the analysis of the breath samples pursuant to its Charter application.

[145] Mr. Palmentier’s opinion establishes that the projected blood alcohol concentration of the accused at the time of the accident was between 110 and 140 milligrams of alcohol per 100 millilitres of blood. That opinion, which I accept, was based solely upon the facts proved before me namely:

• The accident occurred between 3:06 a.m. and 3:08 a.m. (the parties have agreed that it occurred at 3:06am);

• Intoxilyzer 800C results of 115 and 129 milligrams of alcohol in 100 millilitres of blood obtained at approximately 4:49 a.m. and 5:15 a.m. respectively.

[146] I accept Mr. Palmentier’s qualifications as an expert and that the factual assumptions made by him have all been proved in evidence before me beyond a reasonable doubt. Accordingly, if I am wrong in finding that all of the conditions of s. 258(1)(c) have been satisfied, I find as a fact that the accused had a blood alcohol concentration of at least 110 milligrams per 100 millilitres at the time of the accident based upon Mr. Palmentier’s qualified and uncontradicted opinion evidence.

[147] Accordingly, I find that the Crown has established beyond a reasonable doubt that the accused operated a motor vehicle at the time of the accident having consumed alcohol in such a quantity that the concentration of exceeded 80 milligrams of alcohol in 100 millilitres of blood.

(iv) “causes bodily harm to another person as a result” and “causes an accident resulting in bodily harm to another person”

[148] There is no doubt that the injuries suffered by Mr. Footit as a result of the collision with the motor vehicle operated by Mr. Hourihan meet the definition of “bodily harm” in s. 2 of the Criminal Code. The broken arm, concussion and brain bleed that he sustained clearly interfered with his health or comfort and were more than transient or trifling in nature. The issue is whether the accused caused the accident resulting in bodily harm (s. 255(2.1) of the Criminal Code) or whether the bodily harm sustained by Mr. Footit was “as a result” of the operation by the accused of his motor vehicle while impaired (s. 255(2) of the Criminal Code).

[149] The bodily harm sustained by Mr. Footit was as a result of the single accident that occurred when the motor vehicle operated by the accused struck him at 3:06 a.m. In proving causation under s. 255(2.1) of the Criminal Code, the Crown in not required to demonstrate that any particular level of impairment “caused” the bodily harm, it is enough if the accused caused the accident while operating a motor vehicle if the relevant blood alcohol concentration is proved. Stated differently, impairment is not an element of proof required although causation of the accident is under s. 255(2.1) of the Criminal Code. Under s. 255(2) of the Criminal Code, on the other hand, the causal connection between the impaired operation of the motor vehicle and the bodily harm alleged to have resulted is required to be demonstrated.

[150] The distinction is a subtle one but of no material impact on the facts of this case.

[151] I have no hesitation in concluding that Mr. Hourihan caused the accident that resulted in bodily harm to Mr. Footit. The Crown is not required to prove that the accident was solely the fault of the accused. My analysis of the unexplained nature of the accident supports my conclusion that the accident was quite avoidable and that it was caused by Mr. Hourihan who struck Mr. Footit from behind. His role in the chain of causation resulting in bodily harm was certainly material – I make no comment about whether other factors such as lack of reflective clothing or protective gear may have played a role as well.

[152] I have considered whether Mr. Lata’s evidence gives rise to a reasonable doubt on causation and have concluded it does not. Mr. Lata was able to see and avoid Mr. Footit even when the latter was swerving across the lane. Thereafter, Mr. Footit resumed his trajectory along the right edge of a very large lane. There is no evidence that he swerved again and even if he had done so, there is no evidence that this should have prevented him from being seen in the favourable conditions then prevailing.

[153] These findings satisfy the causation elements of s. 255(2.1) and part of s. 255(2) of the Criminal Code. It remains to be considered whether the accident (that caused bodily harm) resulted from the impaired operation of the motor vehicle.

[154] Driving involves a complex coordination between hand and eye (and other senses). Impairment in the coordination and processing of those sensory inputs impairs the ability of a driver to avoid safely a situation that another driver is able safely to react to. I have found that Mr. Hourihan was impaired in fact and there can be no doubt on the evidence that his impairment was a material contributing cause of an avoidable accident that resulted in bodily harm to Mr. Footit.

[155] Mr. Hourihan operated a motor vehicle while impaired by alcohol and caused bodily harm to Mr. Footit as a result.

(v) Conclusion re: elements of offences charged

[156] Based upon the findings I have made, the Crown has proved beyond a reasonable doubt all of the required elements under both s. 255(2) and s. 255(2.1) of the Criminal Code.

Conclusion

[157] Accordingly, I have found the accused guilty of the offences charged in both counts of the indictment. Since both charges upon which I am convicting the accused arise from the same incident, I shall hear submissions on the application of Kienapple v. R., [1975] 1 SCR 729, 1974 14 (SCC) to the facts of this case. I should like to thank both counsel for their helpful and thorough submissions.

S. F. Dunphy, J.

Released: February 9, 2017

[^1]: This application was not part of the initial application made by the Crown. On consent, the Crown sought to amend its application to include statements made to Officer Ivkovic and then withdrew that aspect of the application the following day. I have included it here for the sake of completeness. [^2]: He in fact says “unconscious” and “conscious” almost simultaneously, suggesting change in state [^3]: Apart from the information Officer Silva had yet to report back to his superiors regarding the broken arm sustained by Mr. Footit which I have found he reasonably delayed reporting until receiving a more detailed report of all injuries.