COURT FILE NO.: CR 16-0501

DATE: 20180704

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL CANAVAN

M. Dolby, for the Crown

P. Ducharme, for the Defendant

HEARD: January 29, 30, 31, February 1, 2, 6, 2018

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER s.486.4 OF THE CRIMINAL CODE BY ORDER OF TZIMAS J. DATED JANUARY 29, 2018

Tzimas j.

REASONS FOR JUDGMENT

INTRODUCTION

[1] On June 12, 2015, Michael Canavan was charged with impaired operation of a motor vehicle causing death, contrary to subsection 255(3) of the Criminal Code of Canada, two counts of driving while impaired causing bodily harm, contrary to subsection 255(2) Criminal Code, and of operating a motor vehicle with over 80mg of alcohol per 100 ml of blood, contrary to subsection 253(1)(b) of the Criminal Code.

[2] The accident that resulted in these charges occurred on the night of June 12, 2015 at 10:35 pm. Mr. Canavan was driving northbound on Trafalgar Road in a Volkswagen. He should have been driving in the northbound lane but at some point he crossed into the southbound lane and struck a vehicle that was going southbound. That vehicle was a Honda and it was being driven by Janice Bye. Together with Janice were here daughter Alexa and her daughter’s friend, Sara.

[3] Janice Bye died on the scene of the accident. The two passengers were injured, as was Mr. Canavan.

[4] Although Mr. Canavan admitted to having consumed 3 Tall Boys just prior to the accident, he blamed the collision on an oncoming car in his own lane and explained that he crossed into the southbound lane to avoid that car.

[5] The Crown challenged the existence of any oncoming vehicle and submitted that on the dreadfully fateful night, Mr. Canavan was impaired, he had a blood alcohol count over 80, and that it was his impaired ability to operate a vehicle that caused the death of Janice Bye and the bodily harm to Alexa Bye and Meghan Culver.

[6] In addition to the substantive defence of the charges, Mr. Canavan brought a Charter application that was grounded principally on an alleged breach of his s. 10(b) Charter right to counsel without delay. He further alleged derivative breaches of his s.7 and 8 Charter rights. On account of the alleged breaches, Mr. Canavan sought the exclusion of the results of the breathalyzer tests taken on or about June 13, 2015 and the exclusion of any and all evidence relied upon by the Crown to support its charges against him, including the blood samples and any utterances and statements that Mr. Canavan made.

[7] The Crown also brought an application for an order that certain utterances that Mr. Canavan made immediately following the accident were voluntary and therefore admissible.

[8] At the request of counsel, and with the court’s consent, the voir dires on the respective applications and the trial of the substantive issues were blended.

[9] With respect to Mr. Canavan’s Charter application, having regard for the evidence before the court and the governing legal principles I have concluded that Mr. Canavan’s Charter rights were not breached. There is therefore no reason to exclude the results of the breath, the blood tests or the various utterances from my consideration of the substantive issues.

[10] With respect to the Crown’s voluntariness application, in my consideration of the evidence and the applicable legal principles, the first responders were not persons in authority and there is therefore no issue concerning the voluntariness of those statements. Mr. Canavan’s utterance to Sgt. Houser was made to a person in authority. Nonetheless I found Mr. Canavan’s statement to him to be voluntary. That said I have accepted Mr. Canavan’s submission that he felt compelled by the requirements of ss.199 and 200 of the Highway Traffic Act, R.S.O. 1990, c. H-8, and have decided to disallow the admissibility of that particular statement by operation of s.7 of the Charter. Section 7 is not engaged with respect to the statements to the first responders because the statutory obligations only concern communications with officers. The first responders are not officers and they were not found to be persons in authority to attract s. 7 scrutiny.

[11] Finally, on the substantive issues before the court, for the reasons that follow, the Crown has satisfied me beyond a reasonable doubt that Mr. Canavan’s ability to drive a motor vehicle was impaired by the consumption of alcohol, that his blood alcohol concentration, (BAC) exceeded 80, and that his impaired ability to operate a vehicle is what caused the death of Janice Bye and the bodily harm to Alexa Bye and Meghan Culver.

BACKGROUND

[12] On June 12, 2015 at approximately 10:35 p.m. Mr. Canavan was involved in a head-on motor vehicle collision on Trafalgar Road in the Town of Erin. He was driving northbound on Trafalgar Road in a black Volkswagen Jetta, (the Volkswagen). At some point he crossed the centre line into the southbound lane and struck a vehicle that was driving southbound.

[13] The driver of the southbound vehicle, a Honda Civic, (the Honda) was Janice Bye. She died on the scene. No drugs or alcohol were found in her system. With Mrs. Bye were two passengers, Alexa Sara Bye, 18 years old, who was Janice’s daughter, and Meghan Culver, also 18 years old, who was Alexa’s friend and who was 22 weeks pregnant. Alexa and Meghan sustained serious injuries but survived the collision.

[14] Mr. Canavan was also injured in the collision. He was trapped in his vehicle for almost an hour. He was extricated from his vehicle at about 11:34 p.m. and moved into an ambulance on a backboard. He was taken to Georgetown Hospital where he was transferred to an emergency room. While at the hospital the medical staff took samples of Mr. Canavan’s blood. The police also administered a breathalyzer test.

[15] In addition to the trial on the substantive issues, the Court had before it two Charter applications for its consideration. Mr. Canavan sought an order declaring that his rights pursuant to sections 7, 8, and 10(b) of the Charter were infringed. Specifically, he contended that his right to retain and instruct counsel without delay pursuant to subsection 10(b) of the Charter was infringed. He also contended that he was denied his right to be secure against unreasonable search and seizure, pursuant to section 8 of the Charter and that his right to life, liberty and security of the person pursuant to section 7 of the Charter was infringed.

[16] In these circumstances, Mr. Canavan sought an order pursuant to subsection 24(2) of the Charter for the exclusion of the results of the breathalyzer tests taken on or about June 13, 2015 and the exclusion of any and all evidence relied upon by the Crown in support of the charges against him, including the blood samples and any utterances and statements that Mr. Canavan made.

[17] The Crown opposed the application. It argued that none of Mr. Canavan’s Charter rights were breached, though if they were, they survive by operation of subsection 24(2).

[18] The Crown brought an application for an order that Mr. Canavan’s utterances to the first responders and the police immediately following the accident and his extrication from his vehicle but prior to his arrest were voluntary and therefore admissible. The defence opposed the application, relying principally on the arguments advanced in the Charter application.

[19] At the request of counsel and with the court’s consent, the voir dires for the applications were blended with the hearing of the trial and they were argued at the end of the evidence, together with the substantive issues related to the substantive offences.

[20] In this judgment, it is appropriate that I address and rule on the Charter applications first. Those findings will determine the evidence I can admit for my consideration of the substantive elements of the offences.

CHARTER APPLICATIONS

[21] Mr. Canavan’s Charter challenges are grounded principally on the alleged breach of his s. 10(b) Charter right to counsel without delay. The alleged breaches of sections 7 and 8 of the Charter flow from the alleged breach of s. 10(b).

i. Subsection 10(b) compliance

a. Overview

[22] Mr. Canavan’s challenge to s. 10(b) rests on the argument that the police did not do enough to enable him to exercise his legal right to counsel without delay when his first choice for counsel did not return the phone messages left by the police. In other words, when Mr. Canavan did not hear from his counsel of choice, and even though he refused to speak to duty counsel, which was offered to him, Mr. Canavan’s counsel submitted that the police should have gone further and made additional efforts to offer Mr. Canavan either a phone book, a list of possible lawyers, or access to the internet to locate different counsel.

[23] In my review of the evidence, I disagree with the challenge and I find on a balance of probabilities that Mr. Canavan’s right to counsel was not breached. I find that the police were reasonably diligent in their efforts to enable communications between Mr. Canavan and his counsel of choice. When his counsel of choice did not respond, they offered Mr. Canavan duty counsel but he declined the offer. There was no evidence before the court that taking these further steps would have made a difference since Mr. Canavan was fixated on speaking to Mr. Avery.

[24] I come to this conclusion having regard for the case law relied on by counsel and in particular: R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190 (SCC), paras. 13, 16, and 24, R. v. McCallen, 1999 CanLII 3685 (ON CA), [1999] O.J. No. 202 (ONCA), at paras. 37, 38 and 39, R. v. Sinclair, 2010 SCC 35, [2010] S.C.J. No. 35 (SCC), at paras. 26 and 27, R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173 (SCC) at paras. 17, 19 and 21, R. v. Clayton, [2017] O.J. No. 1522 at paras. 23, 35, 36, and 38, R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 SCR 3 (SCC) at para. 17; R. v. Taylor, 2014 SCC 50, [2014] 2 SCR 495 at paras. 28 and 31-34. I also rely on certain fact findings which I outline below.

b. Legal Principles

[25] Beginning with the applicable legal principles, subsection 10(b) of the Charter provides:

Everyone has the right on arrest or detention

b) to retain and instruct counsel without delay and to be informed of that right;

[26] The right to consult, retain and instruct counsel is among the most important protections for accused persons. This will enable them to fully defend the charges brought against them and is designed to foster “the principles of adjudicative fairness” including “the concern for the fair treatment of an accused person.” The fair treatment of accused or detained persons requires that they be given the opportunity to exercise their right to counsel and that their subsequent decision to co-operate or not with an investigation be based on one that is informed and free, Brydges at para. 13, McCallen, at para.37 and Sinclair at para. 27.

[27] This right anchors an individual’s fundamental right to silence pursuant to section 7 of the Charter, though it is distinct, Sinclair at para. 29:

An important purpose of legal advice is to inform the accused about his right to choose whether to cooperate with the police investigation and how to exercise it. Section 10(b) is a specific right directed at one aspect of protecting the right to silence – the opportunity to secure legal assistance. A given case may raise both s. 10(b) and s.7 issues. Where it is alleged under s.7 and the confessions rule that a statement is involuntary because of denial of the right to counsel, the factual underpinning of the two inquiries may overlap: Singh. Yet they remain distinct inquiries. The fact that the police complied with s. 10(b) does not mean that a statement is voluntary under the confessions rule. Conversely, the fact that a statement is made voluntarily does not rule out breach of s. 10(b).

[28] The purpose of subsection 10(b) is fulfilled through two components, the “informational component” and the “implementational component”, Sinclair at 27:

First it requires that the detainee be advised of his rights to counsel in a way that is understandable to him. This is referred to as the informational component. Secondly, it requires that the detainee be given a reasonable opportunity to exercise his right to counsel. Failure to comply with either of these components defeats the purpose of the Charter right and results in a breach of his rights. Further, by necessary implication, the second component requires that the police hold off questioning and the conduct of intoxilyzer testing until the detainee has had a reasonable opportunity to consult counsel.

In other words, subsection 10(b) of the Charter imposes the following three obligations on police officers arresting or detaining an individual, Bartle at para. 37:

a. to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

b. if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

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

[29] Upon arrest or detention, an accused person is in immediate need of legal advice. At this early stage, the accused person needs to consult with counsel to confirm their right to remain silent, related to the protection of the right against self-incrimination, and to understand how to exercise that right. The accused’s right to counsel of choice “takes precedence over any time pressures created by the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Criminal Code, see Clayton at para. 23. Consequently, the police have a duty to cease questioning the detainee until he or she has had a reasonable opportunity to retain and instruct counsel. This should occur without delay, it must be comprehensive in scope and given in a “timely and comprehensible manner.” see Bartle at para. 17, 19 and 22.

[30] The right to counsel does not change in circumstances where an accused person is in the hospital receiving medical attention. The requirements there are laid out in paras. 31 to 34 in Taylor and are instructive for the purposes of this analysis:

31 There may well be circumstances when it will not be possible to facilitate private access to a lawyer for a detained person receiving emergency medical treatment. As this Court noted in Bartle, a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous circumstances. (…)

32 The duty of the police is to provide access to counsel at the earliest practical opportunity. To suggest, as the trial judge did, that it is presumptively reasonable to delay the implementation of the right to counsel for the entire duration of an accused’s time waiting for and receiving medical treatment in a hospital emergency ward, without any evidence of the particular circumstances, undermines the constitutional requirement of access to counsel “without delay”.

33 Not everything that happens in an emergency ward is necessarily a medical emergency of such proportions that communication between a lawyer and an accused is not reasonably possible. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.

34 An individual who enters a hospital to receive medical treatment is not in a Charter -free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s.10 (b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances. Since most hospitals have phones, it is not a question simply of whether the individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phone conversation is not reasonably feasible.

[31] In addition, when an accused is completely dependent on the information from the police about how to contact his or her lawyer, the police are obliged to do all that is reasonably possible to accommodate the accused’s wishes and to ensure that any information provided to the accused is accurate to the best of the officer’s knowledge, after taking all reasonable steps to inform himself of an accurate state of affairs. Compliance does not indicate acquiescence, particularly where the accused is left in a position where he has no choice but to call another lawyer based on the information provided by the police.

[32] Reasonable minimum efforts by the police include providing access to a phone, in conditions of privacy, where the accused can contact counsel and have a reasonable opportunity to contact counsel of choice. The police cannot rely on making “some effort” to contact the accused’ counsel of choice to relieve them of their obligations under subsection 10(b). Merely leaving a phone message, without any further steps to facilitate the right to counsel, is negligible and the equivalent of doing nothing at all, see Clayton, at para. 35.

c. Evidence

[33] Turning to the evidence before this court, Mr. Canavan agreed that he was read his rights and that he was asked if he wanted to speak to a lawyer. Mr. Canavan said that he knew Chris Avery because he assisted his nephews with minor criminal issues of their own and therefore asked for him. He agreed that duty counsel was offered to him as an alternative option but he said that he wanted his own lawyer. He expressly said that he meant no disrespect to duty counsel but he appreciated that things were serious and he wanted to speak to his own lawyer.

[34] He further agreed that he was not offered any phone book to identify a different lawyer but he did not suggest that had he been offered a phone book or access to the internet he would have selected another lawyer. Instead, in his recollection of his exchange with the breathe technician, Officer Djworksi, about obtaining advice from other counsel, Mr. Canavan said:

Q. Now Officer Djworski also said he asked you at one point if you wanted to speak with duty counsel and you said no, do you recall that at all?

A. I don’t recall it but I, I know, no disrespect but they’re a random lawyer, and by them telling me I knew this was a serious problem so I wanted to go for a lawyer that I trusted.

[35] Sgt. Houser, the Detective Constable at the time of the accident, who was also the officer in charge on the night of the accident described his efforts to enable communication between Mr. Canavan and his counsel of choice. He described how when he entered the ambulance, Mr. Canavan had a strong odour of alcohol on his breath, he had red glassy eyes, he admitted to drinking three Tall Boys, and he told Sgt. Houser that he should not have been driving. Sgt. Houser placed Mr. Canavan under arrest for impaired driving causing death, he read him a caution and his rights to counsel, and he made a breath demand. He said that Mr. Canavan understood his rights but said that he did not want to speak to a lawyer.

[36] Once at the hospital, Sgt. Houser recalled that he entered into Mr. Canavan’s hospital room where they discussed Mr. Canavan’s right to counsel and arrangements to speak to a lawyer. Initially, Mr. Canavan could not remember his lawyer’s name and asked Sgt. Houser to call his wife to obtain the name. Sgt. Houser called Mrs. Canavan and left her a message.

[37] Before Mrs. Canavan could call back, Mr. Canavan remembered the name of counsel and asked Sgt. Houser to contact Chris Avery. Sgt. Houser complied and called Chris Avery’s office. He left a message on Mr. Avery’s voicemail. Mr. Avery’s office message provided a cell phone number as an additional way to reach him. Sgt. Houser passed on the cell phone number to Sgt. Porterfield and asked him to send a text message to Mr. Avery. Sgt. Porterfield confirmed that he got the direction from Sgt. Houser and sent the text message. Sgt. Porterfield did not get any response back.

[38] Sgt. Houser confirmed that Mr. Canavan only wanted to speak to Chris Avery. He declined duty counsel. Sgt. Houser also agreed that he did not offer Mr. Canavan any access to a phone book or other sources of information to identify other legal counsel.

[39] Officer Djworski said that he relied primarily on Sgt. Houser’s efforts to arrange for communications with counsel for Mr. Canavan. Having received the grounds for Mr. Canavan’s arrest from Sgt. Houser, Officer Djworski said that he concluded that he could proceed with his testing. However, prior to doing so he read Mr. Canavan his rights to counsel, he read him the secondary caution, and he asked him which lawyer he wanted to call. When Mr. Canavan told him that he wanted Mr. Avery, Officer Djworksi confirmed to Mr. Canavan that Mr. Avery had not responded to the police’s attempts to facilitate the communication. He asked him if he wanted to speak to duty counsel and Mr. Canavan said no. Like Sgt. Houser, Officer Djworski did not offer Mr. Canavan any phone book or other resource to look for the name of another lawyer. He did not consider it necessary given Mr. Canavan’s refusal of duty counsel.

[40] Finally, Karen Donnelly, the nurse in charge at Georgetown Hospital on the night of the accident testified that the hospital had portable phones and could bring one to a patient if needed. As for a phone book, she did not know if the hospital even had one to offer. She suggested that if she needed to look up a number she would use the computer and look up the Yellow Pages. She also said that the computer could not be made available to a patient, even if it were at the police’s request.

[41] Mr. Avery did not call back until 8:56 a.m. on June 13. The call came through to the Rockwood Detachment. By then, Sgt. Houser was off duty. He said that he provided Mr. Avery the contact information for the officers who were at the hospital and who then arranged for the communications to take place between Mr. Avery and Mr. Canavan.

[42] In sum, the court heard that Mr. Canavan was read his rights just before midnight on June 12 and there were discussions about his choice of counsel shortly after midnight. Mr. Canavan asked to speak to Chris Avery. Sgt. Houser and Sgt. Porterfield left messages for Mr. Avery both on his office voicemail and through a text. Those messages were left shortly after midnight on July 13 and Mr. Avery responded close to 9 a.m. In the meantime, Mr. Canavan was told of the messages to Mr. Avery and the non-response. He was offered access to duty counsel by both Sgt. Houser and Officer Djworksi but he declined. In light of Mr. Canavan’s wishes, the police did not offer any access to a phone book, the internet, or a list other possible lawyers for Mr. Canavan to consider.

d. Findings

[43] In my view, having regard for all the evidence before the court, I am unable to accept counsel’s argument that the police’s efforts to enable Mr. Canavan’s communications with counsel of his choice were inadequate or that they failed to show reasonable diligence. Much was made about the police’s admission that they did not offer Mr. Canavan a phone book, a phone, or access to the internet to locate his own lawyer, when the attempts to reach Mr. Avery did not result in an immediate response. Admittedly, had the police added those steps to their efforts, they would have enhanced their efforts to arrange for Mr. Canavan’s communication with a lawyer. Both Sgt. Houser and Officer Djworski agreed that they could have done more. However, the particular omission cannot eclipse their express efforts to enable Mr. Canavan’s wish to speak with his counsel of choice, Mr. Avery, as well as Mr. Canavan’s express wishes.

[44] The police’s reasonable diligence is reflected in their following actions. First, at Mr. Canavan’s request, they came into contact with Mrs. Canavan to obtain the name of Mr. Avery. There was no response and they left her a message. Then, as soon as Mr. Canavan remembered Mr. Avery’s name, they called his office and left a message. They also texted him on his cell phone. When there was still no response to the message, and keeping in mind that it was after midnight, the police offered duty counsel to Mr. Canavan, which he expressly declined. Apart from Sgt. Houser’s efforts, Officer Djworski repeated Mr. Canavan’s right to counsel and he explored the idea of duty counsel as an alternative option to obtain legal counsel without delay. By the time of Officer Djworski’s inquiry, it was almost 2 a.m. Mr. Canavan knew that Mr. Avery had still not returned any call but he could not have been clearer in his testimony that he did not want to speak to anyone other than Mr. Avery because of the seriousness of the charges that he was facing.

[45] Although counsel made specific references to Taylor and to Clayton, to remind the court that hospitals are not Charter-free zones, and to argue that “some effort” to reach counsel could not amount to reasonable diligence, on the evidence before this court, this was not a situation where the police ignored Mr. Canavan’s rights or only made some effort. The police did not treat the hospital as a Charter-free zone; they tried to facilitate Mr. Canavan’s communications immediately upon their arrival at the hospital. I am unable to characterize the police efforts as only “some effort”.

[46] The police also did not rush to suggest duty counsel immediately upon leaving a message on Mr. Avery’s phone. Unlike the facts in Clayton, where the police did not contact the accused’s father to obtain the name and phone number of the accused’s counsel of choice, the police in this instance contacted Mr. Canavan’s wife to obtain Mr. Avery’s name. Then, they left messages for Mr. Avery both on his office phone and by way of text to his cellphone. They waited some time for Mr. Avery to call back before they did anything; then, since Mr. Avery had yet to call, they told Mr. Canavan that Mr. Avery had not responded, and they offered Mr. Canavan the alternative of duty counsel. Although it was not entirely clear when the suggestion of duty counsel was first raised with Mr. Canavan, there was at least a two-hour interval between the first attempt to reach Mr. Avery and Officer Djworski’s suggestion to Mr. Canavan of the possibility of arranging a call to duty counsel. This is very different from the circumstances in Clayton, where the court identified seven errors in the police’s attempt to facilitate access to that accused counsel of choice, and everything occurred within minutes.

[47] In my consideration of this issue, I cannot ignore the fact that the attempts to communicate with legal counsel were occurring in the middle of the night. Although it was not disputed that Mr. Canavan was not asked if he wanted to explore the possibility of identifying counsel other than duty counsel by consulting a phone book or other electronic directory, I am not sure that given the time of night, the suggestion would have even been practical. I doubt that calling a lawyer out of a phone book in the middle of the night would have produced any better response than what Mr. Canavan got from Mr. Avery. In that regard, it strikes me that duty counsel who might be on call would have been easier to reach than counsel out of a phone book. Counsel did not refer me to any case that made the provision of a phone book or other lawyer list or directory a requirement in addition to the police’s efforts to contact one’s counsel of choice and the offer to contact duty counsel.

[48] More significantly, given Mr. Canavan’s understandable desire to speak to somebody he could trust and his indication that he was not prepared to trust duty counsel, I fail to see how he would be willing to trust somebody out of a phone book or other electronic directory whom he also would not know, even if that option were offered to him. By extension, to hold the police to such a requirement especially in the face of their actual efforts would excel the requirements of reasonable diligence.

[49] Accordingly, I find no breach of Mr. Canavan’s s. 10(b) right to counsel without delay. I am satisfied on a balance of probabilities that the police exercised reasonable diligence in their attempt to meet both their informational and implementational duties to enable Mr. Canavan to exercise his right to counsel without delay.

ii. Section 8 compliance

a. Overview

[50] The claim of a s. 8 Charter breach, was advanced as a derivative challenge of the alleged s. 10(b) breach. Although I concluded that there was no s. 10(b) breach, since both the breathe and blood tests were conducted before Mr. Avery returned the police’s messages and therefore, before Mr. Canavan could obtain his legal advice it is appropriate that I consider and pronounce on whether Mr. Canavan’s s.8 Charter right was breached.

[51] The challenges were is directed at the propriety of conducting the breathe tests and the drawing and seizure of Mr. Canavan’s blood. Insofar as the breathe testing is concerned, counsel submitted that there was no urgency for the test because the 2-hour presumption window anticipated by s. 258 of the Criminal Code had expired. With respect to the blood, counsel alleged that hospital staff drew Mr. Canavan’s blood at the police’s behest. The Crown disagreed with these positions and said that there was nothing improper with the respective seizures.

[52] For the reasons that follow I find no s. 8 Charter breach.

b. Legal Principles

[53] To begin with, section 8 of the Charter provides:

Everyone has the right to be secure against unreasonable search or seizure.

c. The Breathe Tests

[54] With respect to the breathe tests, the police did not rush to test Mr. Canavan’s breathe. The evidence concerning the administration of the breathe test was summarized in the preceding section concerning my s. 10(b) analysis. Although the delay in the testing was caused more so by a convergence of technical difficulties and shortcomings with the intoxilyzer and less by a concern to delay the testing until after Mr. Canavan obtained his legal advice, the net outcome was a substantial delay in the testing. I note parenthetically that had the police not encountered the technical difficulties, the breath testing would have been administered within the 2-hour statutory period anticipated by s. 258 of the Criminal Code. To have delayed the testing even longer would be to allow for the greater elimination of the alcohol from Mr. Canavan’s system and to render the testing meaningless. Complementing that concern is the inference that since Mr. Avery had not returned any calls by 2 a.m., he would not be doing so until the morning. Mr. Canavan’s decision to decline the offer to speak to duty counsel, foreclosed the prospect of any legal counsel before the morning. In such circumstances, the police’s decision to administer the breath test between 2 and 2:30 a.m. on July 13 was not unreasonable.

d. The Blood Samples

[55] Insofar as the blood seizure is concerned, on the totality of the evidence, I am satisfied that the medical staff at Georgetown Hospital drew the blood on the basis of a doctor’s medical requisition for medical purposes and not because of any directive by the police. The police in turn obtained a warrant for the seizure of the blood samples and served that warrant 10 days after the accident.

e. Evidence concerning the Blood Samples

[56] The Court heard from five hospital staff: Michele Moleta, the nurse who drew Mr. Canavan’s blood, Karen Donnelly, the nurse in charge at Georgetown Hospital on the night of the accident, Kathy Lambert, the lab technician on the night of the accident, Joanne Johnston, the Lab Technologist who released Mr. Canavan’s blood to the police on June 22, 2015, and Susan Hamilton, form the Records department.

[57] Contrary to Mr. Canavan’s allegations, all five staff denied any communications with the police and they rejected any suggestion that the police directed them to draw Mr. Canavan’s blood for the police’s own investigation purposes or to set the blood aside for its later retrieval. They denied having any contact with the police. The all had upwards of 10 years’ experience in their respective positions. Moleta, Donnelly and Lambert, who were there that evening, knew that there were three people who were brought to the hospital that night with serious injuries. They also saw the police standing outside of Mr. Canavan’s room.

[58] Turning specifically to the evidence of each of these individuals, the court the following:

i. Michele Moleta

[59] Ms. Moleta explained that when they receive trauma patients they draw a number of blood tubes. She said that they usually draw five or six vials and label them with the patient identifier, a PPID sticker. Then the vials are taken to the lab tech to do the analysis. Any blood they take they will do with a doctor’s order.

[60] In this instance, Ms. Moleta said that she brought the vials to the lab tech, Kathy Lambert. She was there because she was told that a trauma was coming into the hospital. The doctor who gave the blood order was Dr. Ferguson. Ms. Moleta also recalled that Mr. Canavan was stable but that he appeared to have a fractured ankle. He was conscious and he was asking for pain medication.

[61] On the subject of her contact with the police, Ms. Moleta recalled that the police were located just outside of the room by the door. She said she did not have any conversation with the police. In cross-examination Ms. Moleta was asked whether the police asked her to set any blood aside for their use. Her evidence was unequivocal:

Mr. Ducharme: Q: Were you privy to any conversation by the police saying keep some blood of Mr. Canavan’s aside for us?

A: Absolutely not.

Q. You didn’t hear that.

A. No.

[62] Regarding the drawing of and the handling of the vials with Mr. Canavan’s blood, Ms. Moleta said:

Q. And what other colleague with you may have had the duties to handle Mr. Canavan’s blood?

A. Nobody. I just had it.

Q. You just had it.

A. I just had it in my hand, yeah.

Q. Do you have any reason why his blood was taken?

A. We always do that for trauma situations because we don’t know if the – you know – internally bleeding so we always take a pink top, you know, so we always draw this standard routine bloods. (My emphasis)

Q. And does that always routinely have many vials, like six vials of blood?

A. Five or six. We always do five or six tubes because that’s just kind of like the standard – what we have for standard bloods.

Q. I gather you’re not the one that received the order to take the blood.

A. I received – I’ve received the orders, like on the chart is – there’s orders for blood work.

Q. All right and that order came from Doctor Ferguson?

A. Doctor Ferguson, yes.

ii. Karen Donnelly

[63] Ms. Donnelly recalled that EMS notified them that a high level care was coming that included Mr. Canavan. When Mr. Canavan arrived, he was taken to Room 3. Meghan and Alexa were also brought there. She recalled that she was in the room with Ms. Moleta. They re-started an I.V. and Ms. Moleta drew the blood in accordance with the order given by Dr. Ferguson. They did that at around midnight.

[64] Ms. Donnelly also verified that it was Ms. Moleta who labeled the blood vials with the stickers even though the labels had her own name on them. She explained that she was the one who was signed in on the computer to prepare the labels and that is why her name, instead of Ms. Moleta’s name, appeared on the labels. Once the blood was drawn, Ms. Donnelly said the vials were handed to the lab technician, Kathy Lambert.

[65] On the subject of police presence and any communications, Ms. Donnelly confirmed that the police were outside of the room but she could not recall for how long they were there. She denied having any conversation with any police officer and she expressly denied being told by the police to draw blood from Mr. Canavan.

iii. Kathy Lambert

[66] Ms. Lambert said that she did not have any dealings with Mr. Canavan. Ms. Moleta handed her the blood work and she took it to the lab where she did the analysis. She could not recall the number of vials that she received. Once she was done with the testing she put the vials in the chemistry fridge for storage. She said that typically the blood specimens are stored for seven days and then they are discarded. She talked about there being one rack in the fridge for each of the days of the week. She also explained that there was also a rack at the top of the fridge to keep police samples:

Q. And would (the blood vials) have been all kept together?

A. Ah, yeah, except ah, we do have a rack that’s ah, we keep at the top of the fridge for any police samples that may have been subpoenaed or ah, that kind of case, and in this case I knew ah, that there was alcohol and police involvement so I removed the samples from the regular rack and put them in the storage rack in case they were needed for testing later on or so forth just because we discard samples after seven days in the regular racks. (My emphasis)

Q. Right. So you did that personally?

A. I did.

Q. And so this police rack …

A. Yes.

Q. … is it in the same fridge that …

A. It’s not really marked. We have – I don’t know if we, at that time, we had – might have had a little label on it saying police samples, but all we know that that little rack up there is kept ah – … I took it upon myself to put those blood samples just so that they wouldn’t get thrown out in case they were needed.

Q. Okay so you just – and had you had any interaction with the police?

A. No.

Q. Had the police been to the lab that night?

A. No.

[67] In cross-examination counsel asked her again about any interaction with police officers and she said the following:

Q. You had some interaction on this particular night when Mr. Canavan was brought into the hospital with an Officer Houser, do you remember that?

A. No.

Q. So you didn’t speak to Officer Houser at all?

A. I did not.

Q. So you didn’t speak to Officer Houser at all?

A. I did not.

Q. And you said that certain of this blood was kept in the portion of the rack that’s kept for the police.

A. Yes, I put it in a special rack.

Q. And on the basis of what?

A. Ah, just because I knew the – the situation of the case, like I just – I knew there was police involvement and I knew from testing the samples that there was a high blood alcohol so ah, I just took it upon myself that night to put it up there in case it was needed for later. (My emphasis)

Q. And did you communicate that to any person in the hospital …

A. No.

Q. … or did you just have that information yourself?

A. I just have that myself – I just did that myself.

Q. So when was the first time that you speak to the police?

A. Ah, the day that he came for a statement from me.

Q. And do you know what day that was?

A. Ah, I have it on the – on my ah – statement.

Q. Would it be June 22^nd?

A. I think that was the day, yes.

Q. And is it Officer Houser that you speak to on that date or some other officer?

A. Ah, I believe it was – if that’s him there, yes, that was …

Q. You recall that name don’t you?

A. Not really no. I don’t totally remember what his name was.

Q. Your statement says interviewed by Houser …

A. Okay.

Q. … so you recognize that name at least being on your …

A. Yes I do, yes.

Q. … statement. And do you recall specifically the officer identifying himself as Officer Houser?

A. Ah, well not – I don’t have [a] recollection of it but it was him I guess because that’s what it says on my statement and I recognize him visually. I just don’t remember being told his name per se.

[68] Ms. Lambert was then asked about consent being obtained from a patient before the drawing of a patient’s blood and then holding it for the police. She said she did not know because as a lab technician she would not be involved in the drawing of the blood. As for holding back a sample for the police, she said she did not know anything about that but thought there might be something in the Standard Operating Procedure, (SOP), Paradigm. When asked if she would have relied on the SOP when she set Mr. Canavan’s sample aside, Ms. Lambert said:

Q. And what do you believe the guidelines say?

A. Ah …

Q. In terms of taking blood and holding it for the police just on your own.

A. I’m not sure to be honest. I ah …

Q. So you weren’t relying on any SOP as you referred to it, you just did this on your own?

A. That I did do on my own, yes, I put it into the rack because that’s what I thought we were supposed to do if – if it’s needed for further testing.

Q. To be clear that although you make reference to a standard operating procedure, in this particular incidence you didn’t rely on any standard operating procedure because you don’t know what it says about this.

A. Well my understanding is that we – we do put them in the rack there and that’s where they’re kept and – and then police phone – they have to have a warrant or whatever to get the blood and ah, it’s then sealed and kept in that rack until they pick up with a warrant.

[69] Then a little later in her cross-examination she reiterated that she put Mr. Canavan’s blood specimen aside on her own initiative:

Q. So just so I follow Mr. Canavan’s blood, that night you put the blood in the fridge in a place where it would be kept for the police and you’d do that on your own?

A. Yes, we put all the samples in – in the racks on our own and they’re kept in the fridge.

Q. But I’m thinking in particular, I am a lawyer here ….

A. Yeah.

Q. … I’m thinking particularly of his blood that’s kept for the police, you did that on your own initiative.

A. Yeah. I was never asked to put it there or anything. I just decided to put it there because I know that it’s only good for seven – like we throw out after seven days so.

Q. And if I’m right that the police re-attend some time around June 22^nd …

A. Yes.

Q. … in order to obtain blood that was kept in the fridge for them, do you know what happens to that blood in the intervening time between the night that you put it in there and when the police arrive on June 22^nd?

A. It just stays in the fridge.

[70] Ms. Lambert went on to explain that she does not inspect the fridge in any systematic way but if she puts specimen samples in the fridge, it stays in the fridge. She also confirmed that apart from the labels already on the vials she did not initial them or add any additional identifiers.

iv. Joanne Johnston

[71] Ms. Johnston was the one to release Mr. Canavan’s blood sample to the police on June 22, 2015, following on a call that she received from Sgt. Houser on June 19. Specifically, she recalled receiving a call from Sgt. Houser on the 19^th of June. Sgt. Houser asked her if they still had the blood in the fridge. She said that they found the blood in the fridge and that they prepared it for pick-up. Sgt. Houser attended with a warrant to seize the blood on June 22. She recalled that four vials of blood were packaged in a biohazard bag and turned over to him.

[72] Speaking generally about the storage of blood in the fridge, Ms. Lambert explained that there were racks in the fridge for “regular specimen” and then there was a rack for specimen that the police might ask them to hold. They would put the blood on the ‘police rack’ if somebody told them to do so. In this instance, she recalled that she received a phone call from an Officer who said he had a warrant to seize the blood samples.

[73] Ms. Johnson could not recall the exact date of her involvement but she recalled that she was not working on either June 12 or 13. She also said that in her 30 years in the profession she was never asked by a police officer to take blood. She went on to explain that they could not do that; the order for blood would have to come from a doctor. She did agree that if they received a call from the police advising them that they would be coming with a warrant for the blood, they would then put the blood aside but she could not recall if they had a particular protocol for such requests. Specifically with respect to the storage of Mr. Canavan’s blood, Ms. Johnson did not recall any details of where in the fridge the specimen was stored.

[74] With respect to obtaining a patient’s consent before the drawing of any blood she said that this was something the attending physician would obtain.

v. Susan Hamilton

[75] Ms. Hamilton produced the hospital records related to Mr. Canavan and she confirmed that she was the one to deal with the police on June 22, 2015.

[76] The Court also heard evidence from Sgt. Houser about his interactions with the hospital staff. He testified that he had no involvement with the initial request to collect Mr. Canavan’s blood sample. He said that although he could not recall specifics about his conversation he thought that he would have spoken to the nurses about the nature of the injuries and whether Mr. Canavan would be moved to another hospital. He also said that the taking of blood that night was not brought to his attention but that he learned about it afterwards. He said that he contacted Joanne at the hospital on June 19 to advise her that he was in the process of writing up a warrant to seize the blood and he wanted to ensure that the blood was available prior to writing the warrant.

[77] Sgt. Houser said he executed the warrant on June 22 for Mr. Canavan’s medical records and blood. He went to the Records Department to get the records and then to the lab where he picked up four blood vials. The vials were packed in a cooler and sent out to the Centre of Forensic Science for analysis.

[78] In cross-examination it was put to Sgt. Houser that he spoke to a nurse or a blood technician and asked that the blood be stored separately because of his intention to obtain a warrant. Sgt. Houser was also asked about his testimony at the Preliminary Inquiry where he said that he would have spoken to the nurse about keeping the sample in a secure fridge and his comment that although he did not have any recollection of a specific conversation, “most likely I would have had that conversation with most likely the charge nurse or whoever the nurse was that was dealing with Mr. Canavan.”

[79] Initially, Sgt. Houser said he had no recollection of any communications with the nurse about Mr. Canavan’s blood. Once he reviewed his evidence at the Preliminary Inquiry he reiterated his position and said:

Yeah so I don’t have a recollection of speaking to the charge nurse in regards to the blood, but most likely I ah, in these types of situations I would have said there’s a potential that we may be coming back for the blood at a later date.

[80] Sgt. Houser insisted that he did not make specific efforts to obtain Mr. Canavan’s blood samples or ask that Mr. Canavan’s blood be drawn. He said repeatedly that although he did not recall a specific conversation with any nurse or hospital staff, if he said anything at all it would have been limited to telling the staff that he might be back for the blood at a later date. He expressly denied having such a conversation between 11:49 p.m. and 12:01 a.m., which would have been before he spoke to Mr. Canavan about contacting Mr. Avery. He explained that in those few minutes he was focused on making arrangements to bring an intoxilyzer to the hospital to obtain a breath sample.

[81] Sgt. Houser also denied that he would have asked the nursing staff to seal the blood samples. When it was suggested to him that he probably did not have any tags to put on the blood samples, with the implication that this would have been an additional reason to talk to the nurses about the blood, Sgt. Houser said that he always carried tags with him. He agreed that he did not have anything in his notes about a potential conversation with the nurses about the securing of the blood.

[82] Mr. Canavan said that he did not recall demanding medical attention or care when he got to the hospital. He did not believe he had the opportunity to consent or that anyone asked him about his blood being drawn. He also said that he had no idea if anyone asked him about administering pain medication, though he said he was sure that he would have been asking for pain relief. He recalled that he received morphine. He also recalled feeling woozy and lightheaded but he did not think that the morphine helped with his pain.

[83] About his injuries, he said that his right foot and ankle was shattered such that eventually he required nine screws for his ankle, his knees were “messed-up”, he had a split on the head, and lacerations to his arms and his face. He did not recall his eyes being red-rimmed, having chest pains or being thirsty. However he did not have any reason to doubt the evidence of others who attributed those symptoms to him.

[84] As for any consent to medical treatment, Mr. Canavan said that he did not specifically consent to any treatment. But he also said that he did not know.

[85] The Court also heard from a number of first responders about Mr. Canavan’s condition immediately following the accident. Cindy Saavedra, one of the paramedics to attend the accident said that she looked after Mr. Canavan’s “obviously broken ankle”. He complained of pain but they did not give him any pain medication because of their concerns that he had alcohol in his system.

[86] Jonathan Brnjas, also a paramedic, spoke extensively about Mr. Canavan’s condition. He thought that Mr. Canavan was unconscious immediately following the accident. By 11:10 p.m. he was scoring 15 on the Glasgow Coma Scale, which is the highest level of alertness. He said that Mr. Canavan remained pinned in his car until 11:35 p.m. He started an I.V. while Mr. Canavan was still in the car as a precaution. He said that Mr. Canavan complained of pain and gave it a level of 10/10. He had pain in his knee, his skin was pulled back on his left arm, and he complained nausea and dizziness. He ruled out the use of morphine because of his concern over Mr. Canavan’s initial unresponsiveness.

[87] The volunteer fire fighters, Leslie Sharpe and Peter Terry also spoke of Mr. Canavan’s condition immediately following the accident. Mr. Sharpe described how he crawled into the car and held up Mr. Canavan’s head and spine for protection. Mr. Terry thought that Mr. Canavan was initially in shock. He was cold and he did not seem to recognize his pain. He saw that Mr. Canavan’s legs were trapped in the vehicle. Mr. Canavan complained to him about his legs and asked him to get him out of the there.

f. Findings concerning the blood sample seizure

[88] In my assessment of the above evidence, I have no difficulty concluding that the police did not breach Mr. Canavan’s s.8 Charter rights as that relates to the seizure of his blood. I come that conclusion for a number of reasons.

[89] First, I find that on the night of the accident, the staff at the hospital acted independently of the police and only in accordance with Dr. Ferguson’s orders. There was no evidence to contradict the evidence of Michele Moleta who drew the blood or Kathy Lambert, who analyzed the blood and then stored the blood vials in a separate space in the fridge. Their respective evidence was clear, unequivocal and reflected their very substantial experience. Insofar as Mr. Canavan’s counsel found the decision to segregate Mr. Canavan’s blood in the fridge as somehow suspect and indicative of police interference, I find that given the staff’s extensive experience in the emergency room and their observation of the police standing outside of Mr. Canavan’s room, it would not have required much on their part to conclude that the police might be asking for the blood at some point in the future.

[90] Second, there was no evidence that the staff drew more blood than was necessary for their medical purposes. The requisition form indicated that Dr. Ferguson asked for a complete blood work. Her notes were very detailed. They indicated a broken right ankle but there were also questions concerning a broken left ankle, the spine, one of the shoulders, the right forearm and a tender chest. Eventually Mr. Canavan was transferred to Oakville hospital where he had surgery on his right ankle.

[91] Although none of the staff could remember the exact number of vials of blood, Ms. Moleta thought that they did the routine testing that would be done on a trauma patient. She talked about doing all the colours and estimated that this would come to five or six vials. I understood that to mean the colour of the stoppers that are used to cover each tube or vial. The Halton Healthcare Service Policy on Specimen Collection – Venipuncture (EPPIC) that was produced by Ms. Johnson, identified eight different stopper colours associated with the various blood tests. Officer Houser eventually picked up only four vials. I infer from this that Dr. Ferguson requisitioned something less than what might be required for a full routine blood work and instead, directed the requisition to Mr. Canavan’s particular medical needs.

[92] In his submissions to the court, counsel questioned the wisdom of drawing blood from a patient who came in with a broken ankle. He submitted that the Court could infer police interference because typically one would not have blood work done for a broken limb. I have significant difficult with that submission because it calls for speculation over medical protocols and decisions without an evidentiary foundation, something that is not permitted, see R. v. Pino, 2016 ONCA 389, at paras. 95-98.

[93] More significantly, the uncontested evidence was that Mr. Canavan was brought to Georgetown Hospital on a stretcher and was received as a trauma patient. He was subjected to the routine tests administered to trauma patients. Eventually, his diagnosis on discharge was a broken right ankle, but he came in with complaints of extreme pain. He was assessed for much more than a just a broken ankle.

[94] In keeping with this finding, I also note that there was no evidence that the physician who examined Mr. Canavan and requisitioned the blood work or the medical staff who took and analyzed the blood samples were acting as agents of the state or that they took the samples with the intention of sharing the blood results of analysis with the police.

[95] Third, I find that the staff complied with the hospital protocols that give specific directions on how they are to engage with the police and the reasons for which they may be permitted to draw blood. The court heard evidence that the Halton Healthcare Services Protocol concerning Blood Alcohol Testing gives the following explicit directions:

• Halton Healthcare Laboratories will perform blood alcohol levels for diagnostic or therapeutic reasons only. Blood alcohol testing will not be performed for medical-legal purposes.

• Medical Laboratory Technicians or Phlebotomists are NOT to take blood samples from a suspect for medical-legal purposes even when asked by a Police Officer.

[96] With respect to the release of blood alcohol results, the same document provides the following:

• All requests for results and copies of results must be directed to Clinical Information Systems. Under no circumstances are Lab staff authorized to release the results of blood alcohol testing or provide such patient reports to anyone other than hospital staff providing medical care to the patient.

• NOTE: Police officers must wait outside of the laboratory while testing is being performed even if the Police Officer requests to accompany the technologist into the laboratory.

[97] On the subject of the release, the direction is as follows:

• An employee being asked to release a blood sample to the Police shall be presented with a warrant requesting its release (that will be retained by the Corporation) before he or she is legally able to do so.

[98] On the totality of the evidence, I therefore find that the staff acted entirely in accordance with the above policy and associated directives. Most significantly, the blood specimen was not released until the police produced a warrant. I discuss that further below.

[99] Fourth, although there was much concern and questioning over the nature of Mr. Canavan’s consent to medical treatment, s.8 considerations would not be engaged if the staff were not acting as agents of the state: see R v. LaChappelle, 2007 ONCA 655 at para. 40 and R v. Dersch, (19930, 1993 CanLII 32 (SCC), 85 C.C.C. (3d) 1 at 12-3. I have no difficulty concluding, as I already noted that the hospital staff were not acting as agents of the state.

[100] In addition, even though there was no explicit evidence of Mr. Canavan’s consent either through the production of a consent form or through the treating physician’s testimony, there is sufficient evidence to infer that Mr. Canavan did not refuse the doctor’s requisition for routine blood work and x-rays. There was no recorded objection. In this regard, I note that courts have held that in the absence of any objection to the taking of blood samples, Mr. Canavan would be deemed to have consented to that procedure. See R v. Thomas, [2000] O.J. No. 1308 (SCJ). I further note the conclusion by Durno J. in R v. Colbourne, [1998] O.J. No. 5913, upheld, 2001 CanLII 4711 (ON CA), 2001 O.J. No. 3620, (ONCA), at para. 11, that “ … the taking of blood in a motor vehicle accident is standard procedure”.

[101] On the evidence before the court, Mr. Canavan was talkative and was forthcoming about his drinking. He was described as alert. His pain complaints were clearly articulated. The doctor’s documentation of Mr. Canavan’s pain level and his complaints concerning the pain were consistent with what the rest of the medical staff observed and reported. It was also consistent with the descriptions of Mr. Canavan that were given by the first responders.

[102] Against these observations, there was no evidence that Mr. Canavan refused treatment or was in any way uncooperative. The contrary was true. He complained of pain and he was very co-operative. A refusal to have his blood drawn would have been out of character in his circumstances and given the otherwise detailed notes, I would have expected to see a recording of such a refusal.

[103] Furthermore, the Halton Healthcare Service Policy document on Specimen Collection – Venipuncture (EPPIC), suggests that the medical staff would have been prompted to record a patient’s refusal to have his or her blood drawn. It contains the following specific reference to a patient’s consent to treatment. It says:

The patient may refuse to have their blood collected. Explain the process to them and if they still refuse, inform the nursing team of the refusal. Document this into the PPID using one of the drop down comments.

[104] The PPID refers to a patient’s identification and would contain a patient’s basic identification information. Ms. Moleta explained that a patient’s information is entered into a computer. It produces a bar code that appears on both the patient and the labels that are printed and affixed to the blood specimen tubes. The person drawing the blood would scan both the patient’s identification band and the labels to be sure that the blood that is drawn is properly identified to belong to the right patient. The lab technician who receives the tubes will also read those labels. According then to the policy, a patient’s refusal to have blood drawn would be recorded right on his identification band through PPID.

[105] In their respective testimonies, none of the medical staff said anything about seeing anything on the PPID labels to suggest that Mr. Canavan had withheld his consent to having his blood drawn. Ms. Moleta confirmed that she was the one to enter the information in the PPID system and that once she drew the blood, she was the one to label the tubes. The common evidence across all of the medical staff and others was that Mr. Canavan complained about his pain. He did not complain about anything else. Given the policy directive and the absence of anything on PPID, I infer that Mr. Canavan did not refuse the blood work. Accordingly, I find that on balance of probabilities that Mr. Canavan consented to being treated as a trauma patient at the Georgetown Hospital, in Emergency.

[106] Fifth, although much was made of Sgt. Houser’s conflicting evidence over whether he expressly ordered the nursing staff to obtain a blood sample from Mr. Canavan, I have come to the conclusion that he did not speak to the nursing staff at Georgetown on June 13. To begin with, counsel’s suggestion that Sgt. Houser specifically asked the hospital staff to draw Mr. Canavan’s blood did not line up with what Sgt. Houser said at the Preliminary Inquiry. At trial, Sgt. Houser said that he did not have any communications with the medical staff at Georgetown on the night of the accident. When confronted with his testimony at the Preliminary Inquiry, where he testified that he would have spoken to the nurse about setting aside Mr. Canavan’s blood in a secure fridge for future use by the police, Sgt. Houser said he could not actually recall such a specific exchange. Eventually, in the face of the transcript of his testimony he conceded that he might have had such an exchange with the nurse in charge. But that discrepancy related to the storing of the blood. He never said anything at the Preliminary Inquiry about asking the staff to draw Mr. Canavan’s blood.

[107] In spite of Sgt. Houser’s reluctant concession that he may have said something about the storage of the blood, given the evidence of no less than five medical staff about not having had any communications with any police officer on the night of the accident as well as the very clear policy directives, I find that if Sgt. Houser said anything at all to the hospital staff, there is no evidence to support a finding that it had anything to do with either the drawing of the blood or its storage. His notes did not record any such conversation.

[108] Moreover, in the time interval between 11:49 p.m. and midnight, Sgt. Houser was focused on arranging for the intoxilyzer to be brought to the hospital in time to conduct the testing within the 2-hour window. The blood testing was not his priority. It makes no sense that all five medical staff would have the same recollection concerning their non-interaction with Officer Houser. They were all experienced professionals who testified dispassionately about their respective tasks. They would not have had any reason to deny such an exchange if one in fact occurred.

[109] Consistent with that conclusion, if Sgt. Houser had such a conversation had occurred, he would not be calling Ms. Johnson on the 19^th of June to ask if the hospital still had Mr. Canavan’s blood. Rather, he would be limiting his conversation to the arrangement of a date to serve the warrant and collect the specimen.

[110] Most significantly, even if I were to find that Sgt. Houser asked the staff to set the blood drawn aside in a secure location, there was no evidence by anyone that he directed the medical staff to draw any blood. Sgt. Houser never said that he had any such exchange or request. Although counsel for Mr. Canavan attempted to draw analogies with a number of cases, the facts in this case are expressly distinguishable from the facts in the three cases raised by the defence: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, R v. Colarusso, 1994 CanLII 134 (SCC), [1994], 1 S.C.R. 20, and R. v. Culotta, [2017] O.J. No. 2794.

[111] In Dyment, the doctor collected a patient’s free-flowing blood from an open wound and following a conversation with the police he handed the sample to them. He did so without the patient’s consent and no consent could be implied by the circumstances.

[112] In Colarusso, the court was concerned about the interaction between the coroner and the police. The Court concluded that the Coroners Act could not be interpreted to permit the coroner to convert an exemption under s.16 (5) into an exception for the police to conduct a criminal investigation. In that case, the blood was released to the police and they used it in furtherance of their investigation and not as agents for the coroner. Ultimately the evidence was found to be admissible pursuant to a s. 24(2) analysis. Foundational to that analysis was the finding that the accused had consented to the drawing of blood for medical purposes and that the sample existed independently of any investigation.

[113] In Culotta the police specifically asked for additional blood to be drawn for investigation purposes. The officer stood at the doorway of the treatment room while the blood was drawn, he then accompanied the lab technician to the lab and placed seals on two vials in addition the four that were drawn for medical purposes. The sealed tubes were placed on a shelf in the fridge with the notation “For police use”. Those two vials would not be used for medical testing.

[114] None of these circumstances exist before this court. On the totality of the evidence, I do not find that he made any such comment. I attribute the imprecisions in his testimony to a combination of carelessness and to some confusion between what he might have done and what he actually did. Against that observation, I prefer the evidence of the medical staff who were not invested in the outcome of this case and who testified in a forthright and confident manner.

[115] For all these reasons, I find no breach of s.8 of the Charter. The breathe and blood results concerning Mr. Canavan’s blood and the associated records and analysis are admissible.

iii. Voluntariness of Statements to First Responders and Police Prior to Arrest

[116] The Crown sought an order that utterances made by Mr. Canavan at the scene of the accident on June 12, 2015 were voluntary and therefore admissible. The particular utterances concerned Mr. Canavan’s communications with Sgt. Houser, the paramedics and the firefighters.

[117] Mr. Canavan challenged the admissibility of the utterances made at the scene of the accident on the grounds that they were not voluntary, that the paramedics were persons in authority, that Mr. Canavan did not have an operating mind, and that he did not make the utterances without fear of prejudice or hope of advantage.

[118] The defence also relied on s. 7 of the Charter to argue that Mr. Canavan’s utterances at the scene were statutorily compelled statements in response to sections 199 and 200 of the Highway Traffic Act, that contain statutory obligations to report accidents. Counsel submitted that the circumstances further to which Mr. Canavan made the utterances satisfy the factors engaged by s.7 of the Charter, as articulated in R. v. White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417, such that they should be ruled inadmissible.

[119] The defence’s response actually engages two separate though related issues: the voluntariness of the utterances and the statutory duty pursuant to the Highway Traffic Act, to report an accident. The first question is to consider whether Mr. Canavan’s utterances to the paramedics and to Officer Houser were voluntary. If they were not, that would end the inquiry. If they were, the analysis would then engage the consideration of the statutory obligation to report and the implications of those requirements on Mr. Canavan’s rights.

i. Were the statements voluntary?

[120] For ease of reference, the particular statements in question are the following:

• Paramedic Brnjas: In response to the question of whether he had consumed drugs or alcohol, and while still trapped in his car, Mr. Canavan said that he had 3 Tall Boys.

• Firefighter, Mr. Sharpe: Mr. Canavan said he was coming from hockey in Oakville and going to Hillsburgh. He thought that it took him 45 minutes to get from Oakville to the spot on the road.

• Firefighter, Mr. Terry: Mr. Canavan told Mr. Terry that he was playing ball hockey in Oakville.

• Cst. Houser: While in the ambulance, Mr. Canavan was asked if he had anything to drink and he said he had 3 Tall Boys at a game.

a. The Evidence

The court heard evidence from each of these individuals about their respective interactions.

[121] Mr. Brnjas’ first contact with Mr. Canavan was at 10:47 p.m. When he first saw Mr. Canavan he thought he was unresponsive. He squeezed Mr. Canavan’s trapezius muscle and got no response. He concluded that Mr. Canavan was unconscious. After attending to the other vehicle to examine the injured passengers, he returned to care for Mr. Canavan at 11:10 p.m. At this time he found Mr. Canavan to be alert and oriented. He scored a 15 on the Glasgow Coma Scale. He remained alert and oriented en route to the hospital and complained of pain in his ankle.

[122] Mr. Brnjas accessed the car through the passenger side of Mr. Canavan’s vehicle and started an I.V. as a precaution because he was worried about Mr. Brnjas’ blood pressure dropping at some point and wanted to be sure he was ready to intervene if necessary. Mr. Canavan was not extracted from the vehicle until 11:35 p.m.

[123] Mr. Brnjas testified that in preparation of his report, he questioned Mr. Canavan about the use of any drugs or alcohol. Mr. Canavan told him that he consumed 3 Tall Boys. Mr. Brnjas said he advised Mr. DeLuca, another paramedic of this information and asked him to convey it to the police. He said that the general practice is to inform police that somebody might be impaired. Apart from identifying the other injured parties, he said that he did not have any conversation with any police officer until he was in the ambulance. Once in the ambulance, he recalled talking to Officer Houser but he did not record anything in his notes. Mr. Brnjas said that he would not record any such conversations.

[124] With respect to his positioning in the vehicle, he recalled that he sat beside Mr. Canavan, by his left arm and Ms. Saavedra sat near his head. Officer Houser was by Mr. Canavan’s feet. Mr. Brnjas also recalled that Officer Houser read Mr. Canavan his rights and placed him under arrest. He said that Mr. Canavan told the officer that he had consumed alcohol. He did not recall Officer Houser reading anything from a book but he recalled him telling Mr. Canavan that he was “under arrest for suspicion of impaired”. He could not recall Mr. Canavan’s response to his arrest. Apart from that exchange he could not recollect any other conversation between Officer Houser and Mr. Canavan. He recalled that the Officer was standing just before the ambulance drove off. Mr. Brnjas said that he did not have any concern about Officer Houser speaking to Mr. Canavan.

[125] Mr. Dean DeLuca testified that he recalled somebody by the name of John telling him that the patient in the ambulance was “HBD” (has been drinking). He then notified the Ontario Provincial Police. It is noted that in the balance of his testimony Mr. Dean DeLuca was confused about the circumstances of the accident and seemed to describe a different accident altogether.

[126] Ms. Saavedra, also a paramedic who was working side by side with Mr. Brnjas recalled Mr. Canavan in his vehicle. She said that he was conscious and scored 15 on the Glasgow Coma Scale, the highest level of alertness that one could have. Once in the ambulance, she recalled that her partner asked Mr. Canavan if he was drinking and then he left the ambulance. The police also asked him about his drinking and Mr. Canavan said he had “3 Tall Boys”. She explained that paramedics would ask about alcohol in the normal course of business because there is some medication that they could not administer if the person in question has consumed alcohol. Mr. Canavan was not given any medication in the ambulance.

[127] Ms. Saavedra thought it took fifteen minutes to get to the hospital but she was uncertain because she was focused on dealing with Mr. Canavan’s ankle. She recalled that Dean DeLuca drove them to the hospital, the officer remained with Mr. Canavan the whole time, and Mr. Canavan was co-operative even though it was evident that he was in a lot of pain.

[128] As noted in the s.8 analysis, the volunteer fire fighter, Mr. Terry thought that Mr. Canavan was initially in shock and kept speaking to him to maintain a conversation. He asked Mr. Canavan things like his name. In that exchange, Mr. Canavan told him that he was playing ball hockey in Oakville. He also complained about his legs and asked Mr. Terry to get him out of his car. There was no evidence that either Mr. Terry or Mr. Sharpe had any contact with the police.

[129] In the course of Mr. Sharpe’s engagement with Mr. Canavan, and while Mr. Canavan was still trapped in his vehicle, he noted that Mr. Canavan looked fine. Mr. Sharpe, another one of the fire fighters on the scene, explained that when he got to the scene of the accident he was told that Mr. Canavan was without vital signs. He discovered the opposite when he went over to Mr. Canavan’s vehicle. As previously mentioned, he crawled into the back of the car to hold the seat up and to protect Mr. Canavan’s head and spine. Apart from his legs being trapped Mr. Canavan was talkative. He asked Mr. Canavan if he was hurting and he also asked him where he was coming from and where he was going. Mr. Canavan knew his name and told Mr. Sharpe that he was coming from hockey in Oakville and going to Hillsburgh. He also told Mr. Sharpe that it took him 45 minutes to get from Oakville to the spot where the collision occurred.

[130] Sgt. Houser described his engagement with Mr. Canavan during this period. He watched as Mr. Canavan was being extricated from his vehicle but he did not engage with him. Once Mr. Canavan was removed and taken to the ambulance, Sgt. Houser said he waited outside of the ambulance, by the passenger side and waited for information concerning Mr. Canavan’s injuries and the hospital to which he would be transported. At some point he entered the ambulance and stood to the side, at the back of the stretcher where Mr. Canavan was laying. He reported the presence of two paramedics.

[131] Once in the ambulance, Sgt. Houser said that Mr. Canavan was obviously injured and in serious pain. He first learned that Mr. Canavan had been drinking at 11:34 pm from the EMS Supervisor, (Dean DeLuca). When he entered the ambulance, he noticed a strong odour of alcohol on his breath and observed that Mr. Canavan had red glassy eyes. Mr. Canavan told him that he drank three Tall Boys at a game. On the basis of those observations, and while still in the ambulance, Sgt. Houser explained that he placed Mr. Canavan under arrest, gave him a caution and his rights to counsel, and made a breath demand. He agreed that providing rights to counsel to somebody who is severely injured and receiving medical treatment would not be ideal but in this instance he was satisfied that Mr. Canavan was able to provide his name and number and he understood the caution and his rights to counsel.

[132] The Court also heard from the first officer to arrive on the scene, Officer Outscorn. He said that his engagement with Mr. Canavan was focused only on first aid. He asked him how he could help him and held his hand to calm him down. He denied any suggestion that Mr. Canavan was without vital signs at any time or that he was losing consciousness. To the contrary, he heard Mr. Canavan yelling about his pain and saying that he was trapped and could not feel his legs. Mr. Canavan answered questions about his name and where he lived. He remained conscious the whole time that Officer Outscorn was with him.

[133] For his part, as already noted in the Charter review and analysis, Mr. Canavan said that he had no recollection of his extraction, his time in the ambulance, or his interaction with the noted individuals. He thought he remembered calling out for help but he said he did not remember much of anything. Specifically, he had no recollection of speaking to anyone at the scene of the collision, of any person coming into his vehicle and holding his hand, or telling anyone about consuming 3 Tall Boys. He said:

Q. You heard the evidence from witnesses saying that you told them that you had three tall boys for example. Do you actually remember saying that to them that night?

A. No sir.

Q. We’ve heard some evidence that you were speaking to a police officer and making comments about the accident. Do you actually remember telling an officer about the accident that night?

A. No sir but I do believe it, I believe they are telling the truth because I know you are supposed to divulge any information you know about an accident through owning my own business. I train my boys.

Q. What do you train your boys about?

A. To remain at the scene of the accident, to divulge any and all information you know about the accident.

Q. And you train your employees that way?

A. Yes sir.

Q. So if the officer is saying that you were saying things about the accident, even though you don’t recall it, you believe that to be true?

A. Yes sir.

[134] In cross-examination, Mr. Canavan said he could not recall any part of his exchange with the police though he thought he remembered telling the police he had consumed 3 Tall Boys. He denied any memory of a statement to the police, “I shouldn’t have been driving” and he did not believe he would have said anything like that.

[135] On the subject of being obligated to divulge to the police the information concerning an accident, Mr. Canavan reiterated in cross that he had no recollection of saying anything at all but he believed he would have said something because he understood that to be his obligation. That said, although Mr. Canavan’s narrative of what happened included lights coming at him immediately before the collision, Mr. Canavan said that he did not recall telling the paramedics, the firefighters, or the police about seeing headlights coming at him.

[136] Counsel submitted that given the circumstances of his detention and arrest it would be reasonable to believe that Mr. Brnjas was a person in authority, similar to the officer, (Houser), who questioned him moments later. Counsel also argued that an additional factor for consideration was Mr. Canavan’s express knowledge of his requirement to remain at the scene of the accident, report the accident and answer the questions of the officers investigating the accident.

b. Legal Principles

[137] Turning to the applicable law, the test on voluntariness is not in dispute. Statements to persons in authority are presumptively involuntary. When an accused seeks to invoke the voluntariness framework for individuals who do not fit the conventional description of a "person in authority", the accused has the obligation to ensure there is some evidence on the record that makes this aspect of the confessions rule a valid issue for consideration: R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at paras. 36-38. As usefully summarized in R v. Mehl, [2017] B.C.J. No. 2153:

39 To warrant a voluntariness voir dire for an alleged, non-conventional "person in authority", the accused must show there is some evidence from which the Court might reasonably conclude that there was a belief or perception, on the part of the accused, that the statement-recipient was engaged in a relationship of agency or close collaboration with police or the prosecution, or otherwise had some form of control or influence over the criminal proceedings against the accused: R. v. Hodgson, at paras. 35 and 47.

40 This point is clear from R. v. Hodgson. There, the Supreme Court examined the obligation of a trial judge to hold a voluntariness voir dire of his or her own motion, in the absence of a request for same or waiver. The majority explained the obligation this way:

[45] ... 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. This evidence progresses along a spectrum. That is, where the receiver of the statement is a "conventional" person in authority, such as a police officer or prison guard, the trial judge clearly has an obligation to proceed to a voir dire. In such a case, the connection to the authorities is readily apparent. Similarly, where the evidence clearly discloses a close connection between the receiver of the statement and the authorities which indicates that the receiver was, in the circumstances, acting as a person in authority, this may be sufficient to trigger the trial judge's obligation to hold a voir dire.

[46] Specifically, the trial judge must be satisfied that if the accused had been aware of the connection between the receiver of the statement and the authorities, the accused could reasonably believe the receiver was acting as an agent of the police or prosecuting authorities or as part of the prosecution team and was therefore capable of influencing the prosecution against him or her. If the evidence establishes this sort of connection, the trial judge should inquire whether the defence is prepared to discharge its evidential burden on the person in authority issue or whether it waives a voir dire on this issue. Thus, evidence of close association with the authorities might provide an entry to the voir dire procedure but the inquiry on the voir dire will still focus on an analysis to determine whether the receiver of the statement, assessed from the point of view of the accused, is a person in authority and ultimately whether the statement was made voluntarily. However, the further away the receiver of the statement is from the "conventional" case, the less likely it will be that the evidence will alert the trial judge to the need to hold a voir dire, and the greater the obligation of the accused to raise the issue.

[47] 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. This follows because the evidence must establish more than the mere status of the receiver of the statement. Status or personal authority alone will not as a general rule provide evidence from which it can be inferred that the receiver of a confession is, in the eyes of the accused, a person in authority. Rather, in order to demonstrate the need for a voir dire, the evidence must show that the receiver of the statement was closely associated with the authorities prior to obtaining the statement, and that there was as well a close connection in time between the contact with the authorities and its receipt. The evidence must suggest that the receiver was acting in concert with the police or prosecutorial authorities, or as their agent, or as part of their team. Only in these circumstances will the trial judge be obliged to hold a voir dire of his or her own motion on the person in authority issue, subject to waiver of the voir dire by counsel for the accused. [Emphasis added.]

[138] If the evidentiary burden for a voir dire is met, the onus shifts and the Crown must then establish, beyond a reasonable doubt, that the receivers of the impugned statements were not "persons in authority". A person in authority is someone who the accused subjectively believes could influence the prosecutorial proceedings against him. His belief must also be objectively reasonable: Hodgson at para. 47.

[139] If the Crown is unable to meet this burden, the statements will be inadmissible unless the Crown can establish voluntariness beyond a reasonable doubt: R. v. Hodgson, at para. 48; R. v. Grandinetti, 2005 SCC 5, at para. 45. Depending on the circumstances, a parent, doctor, teacher, employer or others could be found to meet the criteria: R. v. Hodgson, at para. 36. The utterances must have been made without fear of prejudice or hope of advantage and must be the product of an operating mind to be deemed admissible. See: R v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 48(1), (8). See also R v. Lam, 2014 ONSC 3538 at paras. 232-238, R v. Athwal, [2017] O.J. No. 133, and R v. Fernandes, 2016 ONCA 772.

[140] A person with an operating mind is somebody who has a sufficient cognitive capacity to understand what he or she is saying and what is said. To determine whether the utterances are those of an operating mind, the test is whether the accused, by reason of his mental and physical condition knows what he is saying. See R. v. Whittle, 1994 CanLII 55 (SCC), [1994] S.C.J. No. 69 at para. 22, and R. v. Ward, 1979 CanLII 14 (SCC), [1979] 2 S.C.R. 30.

[141] In addition the trier of fact must consideration whether the circumstances of the detention are so oppressive so as to raise a doubt as to whether the accused was able to make an independent choice to speak to the police or remain silent: Lederman, Bryant, and Fuerst, The Law of Evidence in Canada, 4^th ed. (Markham: LexisNexis, 2014), at 8.63

[142] Given the blended voir dire with the substantive trial, and having heard for the totality of the evidence, there is a certain artificiality in drawing out a distinction over the need for a voir dire in the first place and then the subsequent evaluation on the voluntariness of the impugned statements. That said, the inquiry breaks down to a consideration from the point of view of Mr. Canavan of a first set of questions:

1. Were Messrs. Brnjas, Terry, Sharpe and Sgt. Houser closely associated with the authorities prior to obtaining the impugned statements from Mr. Canavan?

2. Was there a close connection in time between the contact with the authorities and the receipt of the respective statements?

3. Were the noted individuals acting in concert with the police or prosecutorial authorities, or as their agent, or as part of their team?

4. Did Mr. Canavan consider the noted individuals each to be a person in authority?

[143] If the answer is yes to any of these questions, then the voluntariness inquiry will be engaged and the statements at issue will only be admissible if the Crown can satisfy the court beyond a reasonable doubt that the statements made were voluntary. If the answer is no to all of these questions then a voluntariness inquiry would not be required.

c. Findings Re: First Responders

[144] On the evidence before me, I draw an immediate distinction between Messrs. Brnjas, Terry and Sharpe on the one hand, and Sgt. Houser on the other. For Messrs. Brnjas, Terry and Sharpe, there was nothing in the way that they conducted themselves to suggest to Mr. Canavan that they were closely associated with the authorities, that they were acting in concert with the police or the prosecutorial authorities, that they were agents for the police, or that they were part of the police team.

[145] Each of these individuals was focused on supporting Mr. Canavan’s medical needs. They did so by asking him if he was okay, by propping him up to protect his spine, by taking his vital signs, and starting an I.V. There was no questioning of an investigatory nature by any of the three individuals. Mr. Canavan only mentioned the three Tall Boys to Mr. Brnjas who needed to know about his alcohol consumption for medical purposes. He said nothing about that to Messrs. Terry and Sharpe. With those two he responded to their questions about where he was coming from and where he was going.

[146] It is also significant that these exchanges occurred before Mr. Canavan had any substantive interaction with the police. Although Officer Outscorn was first on the scene, his interaction did not involve any questioning. He said he held Mr. Canavan’s hand to reassure him. I find this to be a very material distinction from the factual circumstances in R v. Kraus, 2015 ONSC 2769. Although defence counsel relied on this case and invited the court to rely on it to find that the first responders were “persons in authority”, the material distinction is that in Ms. Kraus’ case, her statements to the paramedics were made after she was strapped to a stretcher, loaded into the ambulance, and placed under arrest. Her incriminating statements to the paramedics were made after her arrest. In Mr. Canavan’s circumstances, he did not make any utterances to the paramedics and fire fighters after his arrest.

[147] Mr. Canavan’s inability to remember anything about these exchanges is problematic insofar as his ability to elicit any subjective evidence of his perception of the three individuals is concerned. It is difficult for the court to make such an assessment if an accused cannot remember. That said, given the behaviour of the three individuals and the focus on Mr. Canavan’s medical care, to the exclusion of any other inquiries or investigations, I find no evidence to support a finding that it was subjectively plausible and objectively reasonable for Mr. Canavan to view these three individuals as persons in authority.

[148] Insofar as the evidence of Mr. Brnjas’ interaction with the police is concerned and the possibility of a link between him and the authorities, I am hard pressed to conclude that his communication with the Supervisor of EMS about the possibility that Mr. Canavan might have been drinking put him in a position of authority or that it was a sufficient link to support the inference that Mr. Brnjas was acting as part of the police team, that he was an agent for the police, or that he was assisting the police in their investigation.

[149] Quite apart from the fact that the actual communication concerning the alcohol consumption was between Mr. DeLuca and Sgt. Houser and not between Mr. Brnjas and Sgt. Houser, there was no evidence that Mr. Brnjas conveyed to Mr. DeLuca the actual content of Mr. Canavan’s utterance to him. He said nothing to Mr. DeLuca about three Tall Boys. All Mr. Brnjas did was raise a concern that Mr. Canavan may have been drinking. Mr. DeLuca in turn did not convey anything to Sgt. Houser about three Tall Boys. The essence of Mr. DeLuca’s communication with Sgt. Houser was to alert him to the potential problem with Mr. DeLuca. That set the stage for Sgt. Houser to enter the ambulance and undertake his own investigation, which, as I will discuss below, he did.

[150] With respect to counsel’s argument that Mr. Canavan knew his statutory obligations to answer questions of the officers investigating the accident, with the further implication that Mr. Canavan would have treated everyone on the scene as person in authority, in Mr. Canavan’s own testimony on his understanding of this obligation, he spoke specifically about answering questions of an officer.

[151] What was more curious or revealing about the extent of Mr. Canavan’s memory was his admission that he would have said something about 3 Tall Boys but that he would not have said anything about the impropriety of driving. To the extent that Mr. Canavan suggested some self-censoring even in the face of his own admitted understanding of his obligation to answer the police’s questions, the court cannot rely on his knowledge of his statutory obligation as a measure of his subjective understanding of the circumstances, and the further implication that he would have concluded that the first responders were “persons in authority”.

[152] To be clear, I make no findings substantively on Mr. Canavan’s credibility and I make no findings concerning his decision to disclose some information but not other. I only highlight Mr. Canavan’s own admitted self-censoring to explain that in the face of such an admission I am unable to accept counsel’s invitation to rely on Mr. Canavan’s understanding of his statutory obligations as a measure of his subjective engagement with the paramedics and the fire fighters and the further proposition that he must have concluded that they were “persons in authority”.

[153] In addition, Mr. Canavan’s admission to selective utterances ties into the degree of Mr. Canavan’s operating mind. If, as counsel suggested, Mr. Canavan would have responded to the questions out of a sense of a statutory obligation, and if, as Mr. Canavan suggested chose what to say, he must have had an operating mind. It cannot be the case that Mr. Canavan both chose what to say and was also confused or had varying levels of awareness.

[154] On the objective evidence before the court, I find that Mr. Canavan had an operating mind. Although Mr. Brnjas testified that when he examined Mr. Canavan at 10:47 p.m. he did not appear to be conscious because he did not reacted to the squeezing of his trapezius, when he returned to Mr. Canavan at 11:10 p.m., Mr. Canavan was alert and scored a 15 on the Glasgow Coma Scale, the highest level of alertness. In addition, the firefighters did not detect difficulties in their interaction with Mr. Canavan and believed that he was conscious at all times. The first officer on the scene, Officer Outscorn disagreed with the suggestion that Mr. Canavan lost consciousness at all. On the totality of the evidence, and having regard for Mr. Brnjas’ multiple responsibilities immediately upon his arrival on the scene, I prefer the evidence of all the other witnesses who said that Mr. Canavan remained alert at all times. If he had any lapse, it could only have been momentary, particularly given that within 20 minutes of Mr. Brnjas initial contact, Mr. Canavan scored the highest level of alertness.

[155] Finally, there was no evidence to suggest that Mr. Canavan made his comments in response to any threats, promises or inducements by these individuals. All of the witnesses were there to respond to Mr. Canavan’s medical emergency needs and they demonstrated that through their actions. There was nothing oppressive in their conduct or the circumstances to put their conduct into question.

[156] In these circumstances, I find it both subjectively plausible and objectively reasonable that Mr. Canavan would not have viewed these individuals as persons in authority. Absent any other reasons for excluding the evidence, the statements by Mr. Canavan at the scene of the accident to Mr. Brnjas and the two firefighters are admissible and do not require a further consideration as to their voluntariness.

d. Findings Re: Sgt. Houser

[157] The analysis in relation to Sgt. Houser is different because he was a person in authority. He did not enter the ambulance to offer medical care, and he did not interact with Mr. Canavan for medical purposes. That engages the question of whether the answers he gave to Sgt. Houser were voluntary.

[158] For the reasons already discussed, Mr. Canavan had an operating mind. There were no threats, promises or inducements to cause Mr. Canavan to make an involuntary statement. The questions by Sgt. Houser were brief and limited to some basic information. There was no evidence that Sgt. Houser knew anything more than the paramedics’ suspicion that Mr. Canavan may have consumed alcohol. Sgt. Houser read him his rights and caution almost immediately following Mr. Canavan’s statements concerning his consumption of three Tall Boys.

[159] In light of this evidence, separate and apart from the statutory obligations, which I discuss immediately below, I find that Mr. Canavan’s statements to the police were voluntary and therefore admissible.

ii. Mr. Canavan’s statutory obligations and his s.7 Charter rights

[160] Having found Mr. Canavan’s statement to Sgt. Houser voluntary and admissible, this inquiry applies to the possibility of a resulting s. 7 breach by virtue of the statutory obligations under the Highway Traffic Act. Although counsel argued that Mr. Canavan would have mistaken the paramedics and fire fighters as persons in authority and have answered their questions because he knew his statutory obligations, the statutory obligations do not refer to persons in authority; they speak of police officers. Mr. Canavan, in his own evidence spoke of his understanding in terms of his obligation to answer the officer’s questions. In any event, having found that the first responders were not persons in authority, this inquiry does not extend to the utterances made by Mr. Canavan to them. This analysis concerns only the particular utterance to Sgt. Houser.

[161] To begin with, it is not contested that sections 199 and 200 of the Highway Traffic Act contain the statutory obligations to report accidents:

199(1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

200(1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in an accident shall,

Remain at or immediately return to the scene of the accident;

Render all possible assistance; and

Upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver’s licence and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number.

[162] Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[163] The Crown submitted that the precise content of Mr. Canavan’s report to Sgt. Houser, “I had three Tall Boys and I shouldn’t have been drinking” did not fall within the parameters of R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417. Counsel relied on R v. Bhangal [2013] ONSC 3156 and R v. Wenham 2013 ONSC 7431 to suggest that Mr. Canavan’s responses went beyond his statutory obligations to provide his name, address, driver’s licence, jurisdiction or issuance, motor vehicle liability insurance policy, insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number.

[164] Mr. Canavan disagreed. Counsel examined four contextual factors of White, as discussed in R v. Fitzpatrick, 1995 CanLII 44 (SCC), [1995] 4 SCR 154: i. real coercion by the state in obtaining the statement; ii. the existence of an adversarial relationship between the accused and the state at the time the statement is obtained; iii. the risk of an unreliable confession and the concern that the police officer’s physical presence might cause the driver to produce a statement in circumstances where he is not truly willing to speak; and iv. the real and serious possibility that permitting the use of compelled accident reports within criminal proceedings may increase the likelihood of abusive state conduct. He submitted that all four concerns were engaged in this case such that s Mr. Canavan’s s. 7 right was breached as well.

[165] To determine whether there has been a violation of an accused’s section 7 right, the Supreme Court of Canada, in R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 38 outlined the following three stage analysis:

i. That Mr. Canavan was compelled by statute to provide a report,

ii. That the statements he made were a “report” within the meaning of the compelling statute.

iii. That he gave his report with the honest belief that he was compelled by the statute to do so.

[166] I have difficulty with the narrow interpretation proposed by the Crown on the scope of the statutory inquiry and corresponding answers to be given under ss. 199 and 200 of the Highway Traffic Act. His answers can be taken to be responding to questions under s. 199 of the Highway Traffic Act. At the same time, given Mr. Canavan’s evidence that he could not recall anything about his interaction with Sgt. Houser either in the ambulance or later, there is no evidence to support the contention that he actually felt compelled to give a report to the police. I am also mindful that Mr. Canavan’s knowledge of the legal obligation does not create a presumption of compulsion. The issue is whether the reason he spoke to the police when he did is because he actually felt compelled by a legal obligation to do so, see R v. Roberts, 2018 ONCA 411.

[167] For the reasons already discussed, Mr. Canavan’s argument that he would have sought to comply with his statutory obligations and that he would have been motivated to do so because he knew of his obligations and because his access to a car and to driving was a necessity raises certain doubts concerning his motivation to speak to Sgt. Houser.

[168] However, I am also mindful of his evidence that he knew that he was in serious trouble which he said explained why he only wanted to obtain legal advice from Mr. Avery. Having regard for that aspect of his state of mind, I am prepared to give him the benefit of the doubt on this particular issue and find on a balance of probabilities that his particular statement to Sgt. Houser was the product of a an honest belief that he was compelled by statute to give. This resulted in a breach of Mr. Canavan’s s.7 Charter right and accordingly I find the particular utterance inadmissible.

THE SUBSTANTIVE ISSUES

i. Evidence

[169] I turn to the evidence the court heard on the substantive issues before the court. The issues that the Court will have to consider are essentially the following:

1. Was Mr. Canavan’s ability to drive his motor vehicle impaired by the consumption of alcohol?

2. Was Mr. Canavan’s BAC over 80?

3. Did Mr. Canavan’s impaired ability to operate a vehicle cause the death of Janice Bye and the bodily harm to Alexa Bye and Meghan Culver?

[170] Before I turn to my analysis and findings, I will proceed to review the evidence the court heard on the substantive issues. I do not propose to repeat those parts of the evidence already considered in the Charter applications but may refer to them as necessary in my analysis.

[171] In addition to the witnesses already discussed, the court heard evidence from the two passengers in Janice’s vehicle, from two other drivers, from the police’s reconstructionist expert, from an expert toxicologist, and from Mr. Canavan and his expert reconstructionist.

A. Crown Evidence

A. Alexa Sara Bye

[172] Alexa had just turned 18 when the accident occurred. On the night of the accident, she, her friend Megan, and her mother Janice, was driving to Montreal where Alexa was set to attend Hair School. The plan was that her mother and her friend would help her settle into her apartment in Montreal and then her mother and Megan would return back to Mount Forest, Ontario where her mother lived. Megan came to her place around 7:30 p.m. The plan was to leave around 9 p.m. The day of the accident was a Friday. Her mother worked all day at a physiotherapy office. Then she worked at Spot Restaurant, where she waitressed, from 5 p.m. to 8:30 p.m. She came home at 8:45 p.m., took a shower and the three of them headed out around 9 p.m.

[173] Janice Bye drove a standard shift 2005 Honda Civic. Alexa recalled that the road was “bendy” and that the highway had two lanes. She thought that the weather conditions were clear, that the lighting on Trafalgar was dark and that the traffic was not very heavy. Alexa could not recall how fast her mother was driving but she said that her mother never did more than 90 km/hour. She also recalled that her mother did not consume any alcohol or drugs. Alexa said that they would have been on Trafalgar Road for 10 or 15 minutes before the collision occurred.

[174] Although Alexa could not recall much about the accident, she did say that there was some but not much conversation going on. She recalled that she was on her phone texting when she heard her mom scream “oh shit”. Alexa looked up from her phone and saw headlights coming their way and then she blacked out. She recalled that she managed to get out the car by rolling out. She thought she heard yelling and screaming but she was not sure if the voices were male or female. She recalled that she kept telling the people that came to her assistance to go help her mom. Alexa also remembered looking for her phone to call her father but she could not find it.

[175] As to whether she recalled any braking or gearing down by her mom in the moments before the collision, Alexa said that she did not have any time to react. She did not recall the road surface being wet.

[176] With respect to her injuries, Alexa described multiple fractures that required her to have surgery. She remained in the hospital for two and a half months following the accident.

B. Meghan Culver

[177] Megan was also 18 at the time of the accident. She knew Alexa since 2014. The plan that weekend was for her to go to Montreal with Alexa and Janice where she hoped to do some shopping and then return home with Janice. She recalled that they left Mount Forest around 9 p.m. Their plan was to drive through the night to get to Montreal. Janice would drive for the first few hours. Then Alexa would drive for a couple of hours and Janice would resume the drive for the last stretch. Megan said that at the time she was 22 weeks pregnant.

[178] Megan could not recall many details of the drive. She said that it was her first time on Trafalgar Road. She did not have any particular impression of the road. She though that it might have been raining but she only had a brief memory of that. She was not sure of the lighting on the road. She thought that they had been on the road for about an hour prior to the collision. Megan said she sat in the back of the car. She did not recall any music playing. She also did not recall seeing any other cars. Like Alexa, she was on her phone texting her boyfriend.

[179] Specifically with respect to the collision, the only thing that Megan could remember was seeing headlights, then screaming, and then the crash. She was unaware of any other vehicles on the road and she did not recall any being overtaken by any vehicle. Leading up to the collision Megan did not recall any speeding or unusual braking.

[180] Megan said she lost consciousness. When she came around, she recalled seeing Janice and Alexa passed out. She feared that the car would explode and managed to get out of the car and ran down the road. She also thought that she passed out in the ditch. The next thing she recalled was a lady offering her a blanket. Megan said that the lady lived in the house close to the ditch.

[181] Megan said that the other vehicle that was involved in the collision was on the other side of the road. She could hear that driver yelling for help.

[182] Finally, Megan said suffered multiple injuries. She said that her baby was fine though when he was born he was jaundiced and had low sugar.

C. Bramling Douglas

[183] Mr. Douglas was on Trafalgar Road heading to Mississauga. He recalled that he was driving a 2006 Honda Civic. The weather was a bit foggy and the roads were a bit damp. Because of those conditions he recalled that he slowed down and was driving between 75 and 80 kilometres. He said that the traffic was light. The highway was two-lane with lines segmented in some places where drivers could pass other vehicles. The lighting was very dark and the road was hilly.

[184] Just prior to the accident he said he slowed down to 70 kilometres because he saw a car ahead of him. That car was the ‘Bye’ car. He thought he was situated at about 300 feet behind it. He saw another vehicle behind him at a distance of about 200 feet behind me”.

[185] Specifically regarding the collision, he said the following:

“Okay so I saw the – well I heard the – the cars hit together and then I looked up and they were in the air and they were – like they were very high in the air, I’d never seen anything like it.”

[186] Mr. Douglas explained that when he said he looked up he meant that he looked out into the horizon. Just prior to the sound that he heard he was focused on the roadway. When he looked up he saw the cars spinning. He said that he had never seen anything like that before. He then pulled over to the side, as did the driver behind him and ran over to the collision scene.

[187] The other driver who also pulled over tried to open the doors to the Bye vehicle but they would not open. He recalled seeing a girl hop out of the back door of the Bye vehicle. She had glass all over her and was frantic. She was saying that she was pregnant. He Bramling went over to the girl and tried to calm her down. He was concerned that if she moved around too much she would go into shock. He also recalled other people coming out of the houses nearby.

[188] With respect to the number of cars involved in the collision, Mr. Douglas said that there were only two. The Honda was in one lane and the other vehicle, a Volkswagen, was in the other lane. Leading up to the collision Bramling was asked about seeing another vehicle and about seeing any headlights coming from the northbound direction of the highway.

[189] Regarding the presence of another vehicle, he confirmed that in his initial statement to the police he said that he saw two vehicles going in the same direction ahead of him and two sets of taillights, with one set in the northbound lane going south. He said that even when he was giving his statement to the police he was not entirely sure of what he saw. He stood by his evidence that he could no longer say if there was another vehicle in the wrong lane going south. Mr. Douglas could also not recall if he saw any headlights in the northbound lane.

D. Chad Vinden

[190] Mr. Vinden testified that on the night of the accident he was driving down to Mississauga to respond to a refrigeration call. He worked in refrigeration for thirteen years. He said he was on Trafalgar Road just before the accident. He was familiar with the road and he recalled that it was hilly, dark and two lanes. He was driving his work truck, a GMC 1500. He recalled that it was dark, the rain had stopped, the fog was kind of lifting and the traffic was light.

[191] Chad recalled in the moments before the accident he had three cars ahead of him. Immediately ahead of him was the car of another witness, meaning Mr. Douglas. Ahead of that car, Chad said he saw two sets of taillights. He could not say exactly what lane the taillights were in but he thought they were in the right-hand lane, meaning the southbound lane. He estimated that he was between 500 and 700 meters back from the scene of the accident. When the accident occurred, he said he could see two sets of taillights driving and there was spinning. Specifically with respect to the two sets of taillights he said that the taillights looked like “one’s ahead of another, so following each other”. He thought that they were in the same lane. Chad said that at no time did he see any headlights.

[192] In cross-examination, on the specific positioning of the two sets of tail lights, Mr. Vinden doubted that they were next to each other and suggested instead that one se was ahead of the other. He explained that from his vantage point and angle it was possible to see the two sets of tail lights in succession to each other. Specifically,

Q. In order for you to see four taillights, in other words, two sets of taillights, those two vehicles had to be beside each other.

A. Dark out. I couldn’t tell you that.

Q. But if they were one in front of the other you wouldn’t be able to see four taillights you would only see two taillights, right?

A. I don’t – yeah, I guess so, I…

Q. Just a matter of common sense isn’t it?

A. Well if they’re on different angles you can see them.

Q. But in order for you to see four, completely, four taillights in front of you they have to be beside each other they can’t be one in front of another can they?

A. Mmm. I guess so …

Q. Okay.

A. It doesn’t make sense to me that they’re beside each other.

Q. No? Well I suggest to you it definitely doesn’t make sense that you can see four taillights but one is in front of another. You wouldn’t see the one at the front would you?

A. It doesn’t make sense to me that they’re beside each other.

Q. No? Well I suggest to you it definitely doesn’t make sense that you can see four taillights but one is in front of another. You wouldn’t see the one at the front would you?

A. If you’re on a typical angle yeah you could be able to. I’m sitting up a little higher.

Q. I see, so the one in front would have to be quite a distance in front, is that what you’re saying?

A. I guess, yes.

[193] Mr. Vinden went on to describe how one set of taillights was involved in the collision but the other kept going southbound. He explained:

A. Headlights, like there’s two cars, two sets, and then two were kind of in the accident and it looked like one kept going.

MR. DUCHARME: Q. Right. Of those two sets of taillights, what you saw happen is that one of those sets of taillights just kept going, same direction as you.

A. That’s what I believe, yes.

Q. Avoided the collision.

A. Yes.

Q. And that’s the vehicle that was in the wrong lane, was in the northbound lane, that the one that kept going.

A. I don’t know.

Q. You shook your head there a little bit, that’s what you think happened isn’t it?

A. I honestly couldn’t tell you. I don’t know, it was too far in front of me. I don’t make any reasons up for what happened.

Q. But as you’re travelling along and you see two sets of taillights in front of you, what you describe is one set of those taillights just kept going that way.

A. Correct.

Q. Same direction going southbound.

A. Correct.

Q. Avoided the accident entirely.

A. Looks like it.

Q. And where you saw those two taillights that just kept on going that was right at the ridge of the road where if that vehicle went straight on as you thought, you wouldn’t see it anymore because that’s right where the ridge is isn’t it?

A. Yes.

Q. And you never saw headlights coming in your direction?

A. Correct.

Q. You just saw taillights going away from your direction?

A. Correct.

[194] With respect to the aftermath of the collision, Mr. Vinden said he drove closer to the scene, got out and asked if anyone needed his assistance. He said that the driver of the southbound vehicle was asking for help and then he saw a lady jump out of the read of the Civic. The driver of the Volkswagen was also asking for help because his legs were pinned. He recalled the driver telling him that his legs were stuck. Chad said that he tried to open the door of the Volkswagen but the door would not open. A police officer was first to arrive, followed by the residents in the neighbouring houses. The ambulance arrived 10 to 15 minutes later.

E. Officers Involved in the Investigation of the Accident

i. Sgt. Houser

[195] In addition to the evidence already reviewed, the court heard the following from Sgt. Houser. He was in uniform capacity in a marked police vehicle on the night of the accident. He was dispatched to the collision at 10:35 p.m. and he arrived at the site of the collision at 10:55 p.m. He noticed that nobody was blocking Trafalgar Road for southbound traffic so he positioned his car accordingly, about a kilometer north of the collision.

[196] When he got to the collision site, he saw a black Honda Civic positioned partially on the shoulder and partially on the southbound lane and it was facing mostly northbound, a bit on an angle. He also saw a blue Jetta in the northbound lane facing in a westerly direction. He noted severe damage to both vehicles and described what he saw as a high impact collision. He thought that the roads were damp but he did not recall rain at the time of the call. He said that in his notes he recorded the weather being “overcast, light rain, 13 degrees and the roads were wet”.

[197] Sgt. Houser was in charge of the scene until three other officers arrived. He directed those officers to secure the scene and take witness statements and then he positioned himself by Mr. Canavan’s vehicle and watched his extrication from the vehicle, which was done by firefighters on the scene as well as EMS. He also recalled that he went over to the Bye car where he determined that the person in the driver’s seat was a deceased female. Two girls, who were no longer in the car were attended to by paramedics.

ii. Officer Daniel Djworski

[198] Officer Djworski is a qualified breathe technician. He testified that he was called at around midnight on the 13^th of June 2015 to attend at Georgetown Hospital to administer a Breathalyzer test. He arrived at the hospital at 12:32 a.m. Another officer brought an intoxilyzer 8000C to the hospital. When he arrived at the hospital he went to Emergency Room 3. He found the intoxilyzer outside of that room. He confirmed that Mr. Canavan was in that room.

[199] Officer Djworksi confirmed that he began to prepare the intoxilyzer to administer the test. He discovered however that the wire that connected the keyboard was loose and that he would have to obtain another keyboard. At 1:45 a.m. he conducted a calibration check and at 1:47 a.m. he conducted a diagnostic to verify that the intoxilyzer was functioning properly. At 2 a.m. he obtained the first sample which yielded a result of 95 mg alcohol / 100 ml of blood. The second sample was taken at 2:24 a.m. and it yielded a result of 83 mg alcohol / 100 ml of blood.

[200] Officer Djworski found Mr. Canavan to be quite co-operative even though he was in pain. Officer Djworski reviewed in his evidence the results of the Alcohol Influence Report. In that report, Officer Djworski recorded Mr. Canavan telling him that he was at the Hockey Arena at the Etobicoke Ice Sports, that he had 3-4 Tall Boys at the Arena Bar and that he was not ill and not on medication of any kind.

iii. Officer Frank Thornton

[201] Officer Thornton testified that he took 198 photos of the scene of the accident. He reviewed with the court a booklet of photos. His photos were attached to the Reconstruction Report of Officer Blacklock as Appendix D. He agreed that the lighting conditions were very low. He also recalled that it was a rainy night but he could not recall any rain while he took the pictures.

iv. Cst. Outscorn

[202] Cst. Outscorn attended at the scene of the accident moments after it occurred. He was in full uniform. He was just up the street attending to another collision that involved a vehicle and a deer. He received the dispatch at 10:35 p.m. and was there by 10:40 p.m. For a period of time, besides the occupants of the vehicles he was the only person there. He said he saw two motor vehicles.

[203] The first vehicle he saw was in the southbound lane facing northbound. He confirmed that the driver was deceased and then he noticed a female lying on the grass. She told him she was pregnant. He then went over to another female who was trying to crawl. He could see her shin bone sticking out.

[204] The second vehicle was in the northbound lane. He encountered a male who was yelling and saying that he was trapped and could not feel his legs. Of all the individuals he encountered he thought that Mr. Canavan was the one with the most injuries. He started to ask him some questions to redirect his mind from the pain. For example, he asked him his name and where he lived. He thought he leaned over to speak to Mr. Canavan but he could not recall if the window was down or the door was open or crushed.

[205] He recalled that there was a man who was very helpful with first aid for one of the women. There was also a woman who was helping. A couple that was there was squeamish and reluctant to assist.

[206] With respect to the weather he recalled that it had rained earlier in the day and that it was cloudy. He did not recall the quality of the lighting but he doubted that there were any street lights. He said that traffic was light.

[207] Officer Outscorn thought that the first to arrive at the scene after him was a fire truck and an ambulance. He thought that they arrived 10 or 15 minutes after his own arrival. He remained on the scene of the accident. Once he was relieved of his first aid duties, he took a statement from Chad Vinden, though at the time of the accident he could not recall who that was. He was then asked to attend at the hospital to provide security. He said that he stood outside of the room where Mr. Canavan was in.

[208] Apart from offering some names and dates of birth, he did not recall having any other interaction with the nurses. He recalled seeing Sgt. Houser and the breath technician at the hospital but nothing or nobody else.

v. Darryl Porterfield

[209] Cst. Porterfield said he arrived at the scene of the accident at 11:19 p.m. He spoke with Cst. Toor and learned that there was one deceased person and one who was being extricated from the vehicle. He was there to provide leadership and logistical support. He recalled that by the time of his arrival there were 10-12 vehicles and 2 officers. The roads were wet, the weather was overcast and it was dark. He did not recall any fog.

[210] He recalled interacting with Sgt. Houser and that there was one arrest. He told him at 11:37 p.m. that the driver of the Volkswagen had been consuming alcohol. He was advised at 11:49 p.m. that the individual was arrested and that he would be taken to the Georgetown Hospital.

F. First Responders’ Evidence - Paramedics and Firefighters

[211] As already discussed, the paramedics at the scene of the accident were Mr. DeLuca, EMS Superintendent, Cindy Saavedra, and John Brnjas. Messrs. Sharpe and Terry were the volunteer firefighters who attended to the accident scene. They attended to the various individuals involved in the accident and offered first aid. They also made arrangements for Alexa Bye, Meghan Culver and Mr. Canavan to be taken to Georgetown Hospital. They gave evidence on their observations of the accident site and the condition of the three individuals. Their evidence was summarized in the Charter analysis above.

G. Expert Evidence: Reconstructionist: Cst. Susan Blacklock

[212] Cst. Blacklock was called to give an expert opinion on how the collision occurred on the night of June 12, 2015. She was qualified as an expert to give evidence in the areas of collision reconstruction, scene evidence identification and interpretation, drag factor determination, vehicle damage analysis, vehicle dynamics, occupant placement and restrain evaluation, human factors including response times, speed determination, forensic mapping and scene diagramming, photography, and sequence of events.

[213] Cst. Blacklock concluded that the collision occurred on Trafalgar Road, entirely in the southbound lane. This was the Honda’s proper lane of travel. She described the collision as a head-on collision with a very severe impact. Cst. Blacklock said that she could not identify any physical evidence to explain why the Volkswagen entered the southbound lane.

[214] In support of this overriding conclusion, Cst. Blacklock gave evidence on the road design in and around the location of the collision, the weather conditions, how the collision occurred, the orientation of the vehicles following the collision and the respective damages to the vehicle.

[215] Beginning with Trafalgar Road in the area of the collision location, Cst. Blacklock explained that the road was a county road in good condition travelling in a north/south direction. It had paved asphalt, the lanes were marked and there was a centre line. It had a combination of a solid yellow centre line and an intermittent yellow line. The solid line was for traffic travelling southbound on Trafalgar Road and it was intermittent for traffic travelling northbound. The road also had fog lines on the edges of the east and the west sides of the roadway. There were gravel shoulders on each side that Cst. Blacklock said were “decent as far as width”.

[216] The location where the collision occurred was flat. Immediately to the south of the collision scene, Cst. Blacklock identified a crest in the roadway with an approximate 4 per cent uphill grade that transitioned into an approximate 3 per cent uphill grade for northbound traffic. That meant that southbound drivers would be driving on a downhill grade and northbound drivers would be driving on an uphill grade.

[217] Cst. Blacklock gave three distance estimates in relation to the hill. She said that the distance between the beginning of the hill and the collision scene was between 250 and 300 metres. She said that the crest of the hill was 60 metres south of the point of impact. The top of the hill was between 33 and 36 metres to the south of the point of impact. She estimated that a driver going at a speed of 100 kilometres an hour would drive the distance of 60 metres in two to three seconds. She also gave evidence that within the collision reconstruction field experts generally use a perception time of .75 seconds to perceive a threat and then another .75 seconds to react, such reaction being a change in the steering, braking, or other reactions. She agreed that the reaction time could be slightly higher or lower depending on various external factors.

[218] Cst. Blacklock also discussed the sightlines for a vehicle travelling northbound on the hill. She presented the court with a short video-clip with her driving up that hill to demonstrate the various sightlines for northbound drivers. She gave the following evidence:

Q. Now in terms of sightlines, with a vehicle travelling northbound would you agree that that vehicle literally has to get to the crest in the roadway in order to have a sightline of vehicles that are on the other side of the crest, in other words vehicles coming from the south?

A. Well, as you can tell by the video where that work crew was, they were quite visible from a distance back but the closer we approached that crest we momentarily lose them, we crest the hill and then we pick up on them.

Q. Right.

A. So depending upon where you are in relation to the road if you’re right at that base of where that crest of the hill is commencing the answer would be no you can’t see, further back, as you’re travelling and approaching, yes, you’re going to see, you’re going to momentarily lose and then you’re going to see them again.

Q. But that’s further back in daylight…

A. Even at nighttime you’ll still have the visibility of the headlights. (…) So from a distance and depending upon where you are, yes, you’re going to see some and then you are going to indeed lose it, as you get into that crest and then it reappears again.

[219] Relying on the directionality of the gouge marks on the road to identify the point of impact, Cst. Blacklock said that the Honda was travelling southbound and the Volkswagen was travelling northbound at the time that the two vehicles impacted each other. Having regard for the resting places of both vehicles, she explained:

A. They both rotated, because of the directional forces on each other, they both rotated out of the crash scene in a counter clockwise direction. So basically what’s happening is they’re hitting head on – the Honda is rotating, it’s being driven backwards as it’s rotating in a counter-clockwise direction, approximately 180 degrees to its final rest. The Volkswagen in the same turn, it’s continuing on somewhat in its north directional path, but it’s also rotating in a counter-clockwise direction, approximately within my report I said 45, but it’s more like 90 degrees and comes to rest in the northbound lane facing in a west direction.

[220] Cst. Blacklock went on to explain that the Honda was driven back approximately 10 metres from the point of impact, the Volkswagen final resting point was 8 metres away from the point of impact, and the distance between the two vehicles was approximately 7 metres. In her conclusion that the collision amounted to a severe head-on impact she said:

A. The impact occurred within the Honda’s lane of travel, so with the southbound lane, and it was, from the damage of the two vehicles, it was pretty much a head on collision, there was …

Q. Maybe tell me why you think that?

A. The damage – well Number 1, we put the vehicles together. Number 2, is the ah, - as they struck it was basically licence plate offset to licence plate, so it was maybe about approximately a foot, so they were pretty much head on and the Volkswagen’s licence – front licence plate was actually stamped – I’ve referred to it as a stamp, on the Honda’s front bumper, directly beside the driver’s side of centre of the Honda’s bumper.

[221] Giving further context to this answer, Cst. Blacklock pointed to a piece of the torn off front bumper belonging to the Volkswagen found embedded into the Honda’s front bumper. She also drew the court’s attention to the transfer mark of the word “Volkswagen And Audi Specialist” and four bolt marks found from the Volkswagen onto the driver’s side of the Honda’s front licence plate. This could only happen with a severe impact. In addition, Cst. Blacklock explained that once she had all the necessary measurements for her reconstruction analysis, she had the tow trucks position the two motor vehicles back together to examine how the two vehicles initially struck each other. This confirmed for her that the initial impact was head-on.

[222] In response to the question of why the Honda would be driven back 10 metres, Cst. Blacklock explained:

A. Basically, through the energy – I actually measured or weighed both these motor vehicles using scales to determine what their weights were and then I obtained the approximate weights of the occupants of the vehicles. They’re virtually pretty much the same weight of vehicle with the Volkswagen being slightly heavier. In order for this to occur the Volkswagen had to bring more energy into the crash or more speed into the crash in order to drive this vehicle backwards and to rotate it approximately 180 degrees so if this is an 80 kilometre an hour zone and if the Honda was doing 80 kilometres an hour, the Volkswagen had to be doing a greater rate of speed in order to drive this vehicle backwards and to rotate it. So it brought more energy or more speed into the collision.

[223] With respect to the damages to each of the two vehicles, the court was presented with multiple graphic photos with severe damage to both vehicles. Beginning with the Honda, Cst. Blacklock gave the following description:

A. Well as I said [the Honda] sustained a very severe impact with the amount of crush itself, ah, which I measured to be you know approximately well over a meter on the driver’s side. As – another indicator of the amount is as I said the A-pillar was straightened, the dash was driven back. Prior to extricating the driver out of the vehicle the driver’s side doors were actually shifted and driven back and were actually displaced out of their position and the frame rail which would be the frame portion as you’re stepping inside the vehicle where it attaches to the floorboard, it was actually driven back and it actually abutted out along the C-pillar post into the backseat and actually separated from the floor. So again, (…)

… So that was just again consistent with the amount of energy that was being driven back onto the Honda. Again, as I said, it – I’ve done a number of crashes and this was a – it was a hard hit.

[224] For the Volkswagen, Cst. Blacklock said:

A. … so again this is the damage that it sustained, as you can see the front bumper has been pushed in, the grill has been pushed in, that the bumper itself has been torn off so this is just the frame in behind it and this is a damage outline.

[225] In her report, Cst. Blacklock included extensive descriptions of the exterior and interior damages to each vehicle.

[226] Cst. Blacklock said she had insufficient evidence to be able to offer any conclusions about the respective speeds of the vehicles. But relying on the final resting points, the crush factors and the damages, she had no difficulty concluding that the Volkswagen’s speed exceeded that of the Honda by a differential of 30-40 kilometers / hour. Although she noted that the odometer in the Volkswagen was stuck at about 117 kilometres, she said that this evidence could not be reliable or conclusive. Ultimately, she said that the Volkswagen brought more energy into the crash and was travelling at a greater rate of speed than the Honda in order to drive it backwards and to rotate it approximately 180 degrees.

[227] Cst. Blacklock rejected the possibility of a third car being implicated in the explanation for the collision. The following exchange captures the officer’s response and evidence:

Q. All right. Now follow this with me, that Mr. Canavan is travelling northbound on that road and suddenly headlights are right in front of him, in his lane, he reacts, or to reaction time, he reacts and attempts to avoid those headlights coming right at him. I anticipate he’s going to testify he’s not sure but he may have in his panic stepped on the accelerator to get out of the way of the headlights coming at him and then makes impact with the Bye vehicle. Is there anything [in] that description that’s inconsistent with what you found there?

A. First of all I have no physical evidence, the only evidence I have is the head on collision with this vehicle directly in the …

Q. Right.

A. …southbound lane. The only thing is again, speaking from experience where I have investigated collisions is usually I would expect to see something more on an angle. …

Q. Right.

A. …of swerving …

Q. … and most of my crashes like that occur on the shoulder so if a vehicle is coming towards most people will veer to the ditch and then sometimes that vehicle that’s overtaking also veers to the ditch and usually our impact occurs. …

Q. Right.

A. … on the shoulder. I have no evidence to indicate to me at this collision scene that there was any other vehicle involved and as I said, it’s pretty much a direct head on crash, with – I couldn’t see – there was no angle to it. That’s all I can say.

Q. So to answer my specific question about is there anything there that you see at the roadway that is clearly inconsistent with the scenario that I’ve just put to you? You’re not able to point to anything specific?

A. I can’t, and the thing is, is that I’m overtaking, and the only thing that surprises me is if your witnesses are saying that there are side-by-side behind the Honda does the vehicle overtake the Honda, as I’ve said, there’s nothing there, and I can’t – I can’t tell you if there was a third vehicle or not. …

H. Expert Evidence: Toxicologist: Rachelle Wallage

[228] Ms. Wallage was qualified as an expert in forensic toxicology. She works for the Centre of Forensic Sciences. She was called to address the theory and operation of the Intoxilyzer 8000C, perform analyses of body fluid for the detection of alcohol, absorption, distribution and elimination of alcohol in the human body, and undertake calculations to determine blood alcohol content and the difference between intoxication and impairment.

[229] Ms. Wallage was provided with both breath and blood samples for her analysis. With respect to the blood analysis, Ms. Wallage had both a blood sample to analyze at the lab and the blood analysis from the hospital. For the blood samples, she initially understood that the blood was drawn at 11:50 p.m. But she also said that she was then asked to undertake the calculations at 12 a.m. She explained that she used the time as an anchor for the calculations. The closer the time points, the less elimination rates that would be applied. She determined the following blood-alcohol concentration, (BAC), readings:

• Blood Sample analysis = BAC of 124 mg / 100 ml

• Blood Analysis (Hospital) = BAC of 127 mg / 100ml

• Breath sample no. 1 = 95 mg / 100 ml

• Breath sample no. 2 = 83 mg / 100 ml

[230] Ms. Wallage then undertook an analysis to project the BAC results as at 10:35 p.m. She took into account the following four conditions: the use of a rate of elimination of between 10-20 mg per hour, allowance of a plateau for two hours, no consumption of alcohol within 15 minutes of the incident, and no consumption of alcohol post incident. With those conditions, Ms. Wallage projected the BAC results as at 10:35 p.m. as follows:

• Blood Sample = BAC of 124 -149 mg / 100 ml

• Blood (Hospital) = BAC of 127-152mg / 100 ml

• Intoxilyzer results = BAC of 95 -155 mg / 100 ml

[231] As among the results, Ms. Wallage submitted that the blood calculations were in good agreement. She also said that blood results are more accurate than breathe results because they are a direct measurement of the alcohol content. She also said that the samples collected closest to or adjacent to an incident will be more accurate.

[232] In cross-examination, Ms. Wallage confirmed that her calculations assumed that there was no consumption of alcohol in the 15 minutes preceding the incident. She also explained that a blood reading 5 minutes after the consumption of alcohol would result in a lower BAC than a blood reading taken 20 minutes after the consumption of alcohol because the body will not have had the time to absorb the alcohol.

[233] Ms. Wallage was then asked to consider a hypothetical where a person weighing 150 pounds consumes three tall boys over a period of approximately 30 minutes, with the first can of 473 ml being consumed in the first 15 minutes and the other two cans being consumed in the latter 15 minutes and to provide her calculations for such a scenario. Ms. Wallage explained that she would remove from her consideration the two tall boys consumed in the latter 15 minutes. She also said that she applied the same elimination range and continued to assume that there was no alcohol consumption after the incident. Her readings would then be reduced as follows:

• Blood Sample = BAC of 64-78 mg / 100 ml

• Blood (Hospital) = BAC of 67-81 mg / 100 ml

• Intoxilyzer results = BAC of 40-80 mg / 100 ml

[234] Ms. Wallage was called back in reply evidence and was asked to give an estimate of what a person weighing 150 pounds would have had to consume to generate the BAC results obtained without taking into account the bolus scenario. Using a start-time of 10 pm, an elimination rate of 10-20 mg / hour, and the assumption that there was no drinking after the incident, she concluded as follows:

For a breath BAC of 80, the person would have had to consume between 3.25 to 4.5 tall boys.

[235] For the blood analyzed by both the Centre of Forensic Sciences and the hospital, the person would have had to consume 4 to 4.5 tall boys.

[236] Ms. Wallage was asked to comment on what happens to the alcohol if somebody engages in bolus drinking. She explained that if a person consumes alcohol rapidly, it will go into the system and affect the brain within minutes.

[237] Ms. Wallage was asked to comment on the skills that would be affected if somebody is impaired. She explained that impairment is defined as the decreased ability to perform a task. Another way of thinking about impairment is to consider the deviation from the norm. Impairment would occur when the person exhibited a decreased ability to perform a task. Ms. Wallage differentiated impairment from intoxication, which she defined as the observable signs of alcohol on the individual such as slurred speech, difficulty with walking, and difficulty maintaining one’s balance. One would not have to exhibit signs of intoxication to be considered impaired.

[238] Ms. Wallage then explained that when it came to impairment, there were a number of faculties required for the operation of a vehicle that could be affected by the consumption of alcohol. Managing one’s divided attention so as to process the many sources of information coming to the person who is operating the vehicle is one faculty that may be impaired by somebody who has consumed alcohol. The information being received has to be absorbed, processed, prioritized and then one must decide whether or not to respond. Another faculty affected by alcohol is the choice reaction in a timely manner. If something unexpected happens, one needs to respond appropriately. The driver will have to decide whether to slam on the brakes, swerve to one side or another, or carry on with the driving. Another faculty is the judgment of speed and distance. Drivers who consume alcohol may drive at variable speeds, following a vehicle too closely, or overestimate their abilities and underestimate their risk.

[239] Ms. Wallage, said that impairment is significant when one obtains a reading of a BAC of 50 mg. She agreed that the legal limit is a BAC of 80 mg. In addition, she agreed that there is scientific literature that pegs significant impairment at 80 mg.

[240] On the subject of elimination rates, Ms. Wallage agreed that there are many studies that have questioned the accuracy of a 10 -20 mg/hour measure and that individuals with either liver failure or who are heavy drinkers may have higher elimination rates. She further agreed that some individuals might fall outside of the accepted elimination ranges but she also noted that most experts work with a 10-20 mg / hour elimination rate.

[241] Finally, Ms. Wallage was asked to comment on the variability of reaction times in the population and she agreed that for any given individual different faculties may be impaired but one of the faculties will be impaired.

B. Defence Evidence

a. Michael Canavan

[242] Mr. Canavan was the driver of the Volkswagen which collided with the Bye vehicle. Mr. Canavan owns RMC Waterjet Cutting Services. He has been married for 17 years and has three children combined, one son and two step children. He said that he had three previous convictions: March 20, 1990: driving while impaired, July 31, 1991: driving while disqualified, and March 1, 2000: assault causing bodily harm.

[243] On June 12 Mr. Canavan said he worked from 07.30 until 19.45 and then went to Oakville to the Joshua Creek Arena. He said that he coached hockey for 23 years. On that evening he went to scout players for the winter team. He was interested to watch 15 and 16 year olds play Midget AA. He said that he did this in the summer because the players are not associated with any team; they would be in the winter and tampering would be inappropriate.

[244] Mr. Canavan said he arrived at the arena at about 8:20 p.m. and stayed there for about an hour. He denied being anywhere near the Etobicoke Ice Arena, as suggested in Officer Djworki’s notes. He also denied telling Officer Djworski anything about the Etobicoke Ice Arena. He agreed that he told Officer Houser of his attendance at the Oakville Arena.

[245] While at the Oakville arena, he did not talk to anyone. He also denied consuming any alcohol there. He said that the arena did not have a place to purchase alcohol such as an arena bar. After watching the players for about an hour, he headed home. He said that he was very familiar with the route from the Oakville arena to his home and it included Trafalgar Road.

[246] On his way home he decided to stop in at his brother’s place, which was halfway between Oakville and his home, in Georgetown. He said that many times he would meet his brother, Jake, at his place and they would smoke and drink in the garage. He knew that his brother would be working until 9 p.m. but he expected that he would be home by 10 p.m.

[247] Mr. Canavan arrived at his brother’s place at 10 p.m. Although he did not see his brother’s car in the driveway, he did not announce himself at the residence. He headed back to the garage because he knew that the garage was unlocked. Once in the garage he helped himself to a Molson Canadian Tall Boy, containing 473ml of beer. He thought his brother might join him there because he typically went there after work for a drink and a smoke.

[248] Mr. Canavan said he remained there for about 30 minutes and had an additional two Tall Boys, for a total of three cans, or 1,419 ml. He said specifically that he had the first can in the first 15 minutes of his stay and the additional two cans in the subsequent 15 minutes. Mr. Canavan expressly denied the suggestion that he would have told Officer Djworski that he had 3-4 cans of beer. He said that throughout the night he told anyone who asked that night that he drank 3 tall boys. He was sure that he did not have 4 tall boys.

[249] When his brother did not show up he decided to leave and go home. He explained that the distance between his brother’s place and the accident location was 10 km and that it would take 8 minutes to drive there. His own home was 10 minutes from the location of the accident. He said he knew that information because he went back at some point after the accident and measured the respective distances. He confirmed that the estimated time of the accident of 10:35 p.m. fit perfectly with his estimates.

[250] Mr. Canavan said he recalled this part of the drive leading up to the collision. He said that just before the incline to the hill on Trafalgar Road the speed is set at 80 km/hr. But he also said that before the hill, Trafalgar Road goes through the Town of Ballinafad where the speed is set at 50 km/hr. On the night of the accident he said that he would have been driving at the speed limit. He said that he never speeds in that area because he was caught speeding in the past and he also knew that there were speed traps set in that area and he would not want to be caught again. When asked about whether he was feeling the effects from the beers, Mr. Canavan responded: “No, I just had them so, no”. He did not have any difficulty driving.

[251] Mr. Canavan testified that he did not recall the collision. He gave the following description of what he thought happened:

A. I am sure I’d just proceeded through Ballinafad, you know I remember past the cemetery, doing the sign of the cross, uuh, proceeded 80 kms, start to speed, uh, going up the hill, and as I hit basically the crest of the hill there was light in my lane – bright lights.

Q. What happened then?

A. I, I assume only because I didn’t really remember the accident, that I, I, I assume from hearing now that I went into the left lane.

Q. So the truth is, your answer is you don’t know exactly what happened, is that it?

A. No sir, I don’t.

Q. Cause we don’t allow people just making assumptions. You’ve now heard that your vehicle ends up head-on in the opposing lane so you weren’t travelling in the opposing lane leading up to seeing these headlights?

A. No sir.

Q. And do you have any specific knowledge or recollection of how you got into that opposite lane?

A. No sir.

Q. Now you saw lights. Can you just tell us what kind of lights you saw?

A. Headlights of a car. Directly in front of me.

Q. Would you be able to say whether or not those headlights were moving?

A. They were moving towards me.

Q. So moving towards you. Are you able to say how close they may have gotten to you?

A. No sir.

Q. Anything else you remember then before the collision would be …

A. I remember two sets of tail, or headlights so I guess that would have been the point where I collided with.

Q. Do you have any specific recollection of how quickly that happened? A set of headlights, then another set of headlights?

A. Split seconds.

[252] Mr. Canavan went on to explain that he only learned about a car coming at him at the Preliminary Inquiry. It was only then that he said he was able to make sense of what happened. In particular, he said that prior to the Preliminary Inquiry, he could not understand how if he avoided the light he was still hit by it. This was Mr. Canavan’s specific evidence:

Q. When is the first time you had any actual information that there was a vehicle in your lane coming towards you? When is the first time you learned anything about?

A. Through the Prelim.

Q. You mean the Preliminary Inquiry?

A. Yes

Q. You were there with Mr. Avery?

A. Yes

Q. And you heard the evidence of some of the witnesses?

A. Yes sir.

Q. Uhm, did Mr. Vinden testify at the Preliminary?

A. I, I don’t know who was sir.

Q. We had two witnesses that were referred to today, Mr. Bramling Douglas, …

A. Yes

Q. and Mr. Chad Vinden. Do you know if they testified?

A. Basically one of them, I seem to remember at the Preliminary.

Q. Right, so you hear some evidence at the Preliminary and what does that do to you, what impact does that have on you about this accident?

A. It kinda shed some light on what actually happened. Now all of a sudden I realize that I must have pulled into the left lane to avoid hitting head-on, only to hit someone head-on.

Q. But this is all you kinda of, trying to figure out only after you hear the evidence from the Preliminary.

A. Absolutely because before that I was trying to figure it out; I thought I saw two sets of headlights, I wasn’t sure, I know I definitely saw the one, I was trying to figure it out, but if I avoided it, how did I still get hit by it.

[253] In cross-examination, Mr. Canavan said he was in his own lane going northbound on Trafalgar Road, he then saw a set of headlights right ahead of him and that he veered to the left to avoid the headlights that were coming at him. He said that he did not see any lights in the left lane. It was not until he pulled into the left lane that he saw a second set of headlights. He expressly denied that he only saw one set of headlights coming at him because he was driving in the southbound lane. Mr. Canavan could not recall how he pulled into the left lane. He also denied that his beer consumption had anything to do with his ability to drive or to react the oncoming headlights.

[254] Mr. Canavan did not dispute that the distance between the crest of the hill and the collision point was 36 metres. He had no recollection of when he saw the second set of lights or how he moved into the southbound lane.

[255] Mr. Canavan said he did not remember anything following the accident until his arrival at the Oakville Hospital. There he recalled that he was sent around for various tests, including a cat scan before his surgery. He thought he remembered calling out for help but he said he did not remember much of anything.

b. Expert Evidence: Thomas Flynn

[256] Mr. Flynn, a forensic engineer and reconstructionist was called by the defence to give evidence, principally on the existence and situation of a third vehicle. He agreed with the findings and analysis of Officer Blacklock.

[257] His principal conclusion was that on his understanding of the evidence, there was nothing on the road to have prevented a third vehicle from passing the Bye and the Canavan vehicles without leaving any marks on the ground. On that hypothetical, the third car would be travelling southbound in the northbound lane, the Canavan vehicle would move to the southbound lane to avoid a collision with that third car, and the third car would continue ahead unimpeded. He based that conclusion on the fact that the collision occurred entirely in the southbound lane. He would not expect to see any skid or break marks of any kind from a third car if it were travelling in the northbound lane and if it did not come into any contact with either of the two vehicles that were implicated in the accident.

[258] In cross-examination, Mr. Flynn was asked to comment on Mr. Vinden’s evidence concerning the positioning of a third vehicle and more particularly how he would have been able to see two sets of headlights. He submitted that the Bye vehicle and the unknown third vehicle would have had to be side by side for Mr. Vinden to see two sets of lights. He also said that it would be very difficult to see two sets of taillights in line with one another. He did however add that the third vehicle would have had to be ahead of the Bye vehicle to allow for any evasive action by the Canavan vehicle.

[259] On the subject of the headlights coming at Mr. Canavan, Mr. Flynn observed that lighting coming over the crest would have appeared as a shine of one set of lights. In such circumstances, Mr. Flynn agreed that he could not say where the third vehicle would have been before the collision, where it went, how fast it was travelling, or where it would be positioned at the time of the collision.

[260] On the question of what direction a vehicle would veer to avoid an oncoming vehicle, Mr. Flynn disagreed with the suggestion that a driver would necessarily veer to the right and into a ditch as opposed to driving into the left lane. He explained that there are examples where a driver will veer to the left to avoid an oncoming vehicle and that studies have shown drivers to do both. He did agree that drivers would break in the face of an obstacle and that in this instance the shoulders were wide enough for Mr. Canavan to veer to the right instead of the left. He also questioned whether a sudden evasive move into the opposite lane would result in an angled hit on the Honda as opposed to the actual direct hit.

[261] Finally, on the subject of human reaction times, he said that perceptions responses vary. However he noted that if somebody was not expecting an obstacle, the reaction is estimated in the range between .9 to 1.3 seconds. He also suggested that the reaction time for an oncoming vehicle would very different from other obstacles.

ANALYSIS:

The Substantive Offences

[262] Turning to the elements of the offences, there is no dispute that Mr. Canavan was operating the Volkswagen Jetta. There was also no dispute that Mr. Canavan operated a vehicle after he consumed alcohol. There was disagreement about when in the course of the evening he drank and what effect that would have had on his ability to drive. That fundamental disagreement comes down to a consideration of the following questions:

1. Was Mr. Canavan’s ability to drive his motor vehicle impaired by the consumption of alcohol?

2. Was Mr. Canavan’s BAC over 80?

3. Did Mr. Canavan’s impaired ability to operate a vehicle cause the death of Janice Bye and the bodily harm to Alexa Bye and Meghan Culver?

[263] Before I turn to my analysis and findings, I will review the general fact-finding principles that will guide my decision.

I. General Fact-Finding Principles

[264] To begin with, the Crown bears the burden of proving that the accused is guilty of each offence beyond a reasonable doubt. Proof to a mathematical certainty is not required as that would be virtually impossible to achieve: R. v. Liftchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. Moreover, where there are multiple counts in the indictment, the evidence in relation to each count must be considered as it relates to each count to determine whether or not the Crown meets its burden of proof.

[265] It is open to the court to believe all, none or some of a witness' evidence: R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dube J. (dissenting in the result), at p. 318; R. v. M.R., 2010 ONCA 285, [2010] O.J. No. 1547 at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.), at para. 5; R. v. Abdullah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.)(QL), at paras. 4-5. It follows that I am entitled to accept parts of a witness' evidence and reject other parts. I may also accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para. 44.

[266] In my assessment of Mr. Canavan’s evidence, I must consider his evidence in the context of all the evidence, see R v. J.H.S. 2008 SCC 30 [2008] 2 S.C.R. 152 at para. 13, R. v. C.L.Y. 2008 SCC 2 at para. 6; R v. Mends, 2007 ONCA 669 [2007] O.J. No. 3735 at para. 18 and R v. Carriere 2001 CanLII 8609 (ON CA), [2001] O.J. No. 4157 at para. 48. I am reminded that a determination of guilt or innocence must not devolve into a credibility contest between two witnesses, as it would erode the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: R. v. W.(D.) [D.W.] 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26 (S.C.C.), at p. 409; Avetsyan v. The Queen 2000 SCC 56, [2000] S.C.J. No. 57 (S.C.C.), at pp. 85-87; and R. v. S.M., [2012] O.J. No. 3868.

[267] With these general principles in mind, since Mr. Canavan testified, credibility is to be assessed on the basis of the following three steps, as first laid out in W. (D.), (para. 28):

First, if I believe Mr. Canavan, I must acquit.

Secondly, if I do not believe Mr. Canavan, but I am left in a reasonable doubt by it, I must acquit.

Thirdly, even if I am not left in any in doubt by Mr. Canavan’s evidence, I must ask myself whether, on the basis of the evidence, which I do accept, I am convinced of Mr. Canavan’s guilt beyond a reasonable doubt.

II. Application of Fact Finding Principles to these Facts

[268] Before I turn to the specific questions for my findings, I will make some general findings and observations concerning the credibility and the reliability of the evidence that was presented to the court.

[269] Since Mr. Canavan testified, I must first consider his evidence and evaluate his credibility and reliability. As I already noted, if I believe Mr. Canavan or if his evidence leaves me with any doubt over what happened, I must acquit. I do not find myself in that position for the following reasons.

[270] Although I appreciate that Mr. Canavan suffered his own injuries and experienced perhaps his own worst nightmare that night, his credibility and reliability were weak. The overriding difficulty for Mr. Canavan rested with his inability to recollect the accident and the circumstances immediately before and after the collision. He did his best to deny that he did anything wrong and he tried to reconstruct the events that resulted in the collision on the basis of what he learned from others. He looked for an explanation that would absolve him of any liability and shift the blame to others.

[271] I do not believe that Mr. Canavan came to court with the express intent to lie about what happened. Rather, he reconstructed in his own mind a narrative of denial so as to be able to process and obscure his errors and their dreadful consequences. That narrative was founded on three fundamental pillars: a) a normal and uneventful evening of activities prior to the collision; b) bolus drinking in the 25 minutes that preceded the accident; and c) the existence of a “third” car as the primary cause for everything that unfolded that evening. As he laid out his narrative, it became painfully obvious that Mr. Canavan had no recollection of how the collision occurred and that his memory was curiously selective and weighted in favour of explanations designed to create doubt and to shift the blame away from him and his actions. In these circumstances I could not believe Mr. Canavan’s highly unreliable testimony. His evidence also did not leave me with any reasonable doubt.

[272] For its part, the Crown’s case turns principally on the evidence of Cst. Blacklock’s reconstruction of the accident, Ms. Wallage’s analysis of Mr. Canavan’s blood alcohol content, but also on Mr. Flynn’s own expert evidence on the circumstances of the accident. The evidence of Alexa and Meghan, the two drivers, and the statements that Mr. Canavan made to the first responders and the firefighters are also relevant to my specific factual findings and considerations.

[273] The Crown witnesses were credible and reliable. They all testified in a forthright manner and offered evidence that was clear and reliable. None of the individuals were contradicted on the material aspects of their evidence. I therefore turn to my specific consideration of the three issues.

1. Was Mr. Canavan impaired on the night of the collision?

[274] The short answer is yes, he was. The indicators of Mr. Canavan’s impairment are found in how the collision occurred and his inability to react to the circumstances on the road and in a number of errors in his judgment.

[275] Beginning with Mr. Canavan’s explanation of a third car coming at him and of him seeing two sets of headlights, that theory was refuted first and foremost by his own expert, Mr. Flynn who said that as Mr. Canavan drove northbound up the hill and before he crested, he would have seen a shine of light but he would not have been able to distinguish if the light came from a vehicle such as Janice Bye’s vehicle located in the southbound lane or from another vehicle wrongly positioned in the northbound lane. I find that the following exchange between counsel and Mr. Flynn dealt Mr. Canavan’s explanation of a third vehicle a fatal blow:

Q. …someone who’s coming up the crest of that hill, also in the northbound lane, wouldn’t have seen that vehicle?

A. Um, they most likely would have seen headlights appearing over the – like lights shining over the top of the direct sightline – I don’t think it’s possible, no.

Q. Okay. So do you think that that same northbound vehicle we’re talking about hypothetically could see the shine of the – of the Bye headlights in the southbound lane?

A. Possibly, but lights coming over the top of the hill could also just appear as a single set of lights if you can’t see the lights themselves; just the shine would appear to be one set of headlights.

[276] In other words, the lights on the other end of the crest could not be attributed to a third car. Since we know that Mrs. Bye was driving southbound, in the southbound lane, the shine of lights on the other side of the crest would be coming from her car. On that aspect of Mr. Flynn’s evidence the light shine or glow from the crest of the hill was not from any third car. Mr. Canavan would not have seen a distinct set of headlights, as he said he did. He saw a shine from a single set of lights. His inability to process what he saw is the first indicator of impairment.

[277] Mr. Canavan’s description of the light coming at him, the momentary interruption of that light, and then the light coming at him as his explanation for the supposed attempt to evade the third car, was further undermined by the remarkably similar vision pattern that Cst. Blacklock described. Like Mr. Canavan, she explained that when driving northbound up the particular stretch one’s view of the sightline would be interrupted momentarily as the driver approached the cresting of the hill. The interruption in the lighting would not be caused by by the geography and topography of the road. To illustrate the point, I have replicated the excerpts of the respective testimonies:

[278] According to Mr. Canavan:

Q. Anything else you remember then before the collision would be …

A. I remember two sets of tail, or headlights so I guess that would have been the point where I collided with.

Q. Do you have any specific recollection of how quickly that happened? A set of headlights, then another set of headlights?

A. Split seconds.

[279] According to Cst. Blacklock:

Q. Now in terms of sightlines, with a vehicle travelling northbound would you agree that that vehicle literally has to get to the crest in the roadway in order to have a sightline of vehicles that are on the other side of the crest, in other words vehicles coming from the south?

A. Well, as you can tell by the video where that work crew was, they were quite visible from a distance back but the closer we approached that crest we momentarily lose them, we crest the hill and then we pick up on them.

Q. Right.

A. So depending upon where you are in relation to the road if you’re right at that base of where that crest of the hill is commencing the answer would be no you can’t see, further back, as you’re travelling and approaching, yes, you’re going to see, you’re going to momentarily lose and then you’re going to see them again. (My emphasis)

Q. But that’s further back in daylight…

A. Even at night time you’ll still have the visibility of the headlights. (…) So from a distance and depending upon where you are, yes, you’re going to see some and then you are going to indeed lose it, as you get into that crest and then it reappears again. [My emphasis]

[280] When the descriptions by Mr. Canavan and Cst. Blacklock are put side by side, the only available conclusion is that what Mr. Canavan described as an evasive move to a avoid a “third car”, was nothing more than the changes in his sightline created by the crest in the hill. I have no doubt that Mr. Canavan would like to believe that he attempted an evasive manoeuver to avoid a “third vehicle” but I find no credible evidence to support the conclusion that the break in the light was caused by any evasive move. The confusion of the landscape changes for an evasive manoeuver is another indicator of impairment, and underscores his level of impairment. This kind of difficulty also lines up with the kinds of difficulties that Ms. Wallage described when she talked about the difficulties that somebody who was impaired would encounter.

[281] Building on that finding, Cst. Blacklock’s description of how the head on collision occurred, the searing of the Volkswagen’s bumper marks onto the Honda, the direct head-on impact as well as the pushing back of the Honda by the Volkswagen of 10 metres, the severe crush to the Honda, and the estimate that Mr. Canavan would have been driving at 30-40 kilometres more than Mrs. Bye, underscores the extent of Mr. Canavan’s failure to react to the circumstances on the road. On this point, I note that Mr. Flynn did not dispute Cst. Blacklock’s reconstruction analysis; in fact, he agreed with her conclusions. Taking the findings of Cst. Blacklock’s evidence in their totality, the only plausible explanation for why Mr. Canavan did not react or realize that he was in the wrong lane, and why he did not demonstrate any attempt to get out of the way was because he was impaired.

[282] The third indicator of impairment rests with Mr. Canavan’s BAC results. Although I discuss the results more fully below, I rely on the blood readings that produced a BAC in the range of 124-155 mg/100 ml as the next indicator of impairment. Given Ms. Wallage’s evidence that the readings from the blood samples are more reliable than the breathe samples, I am content to use the blood readings as my primary evidence to support this finding although I do note that the breathe readings gave a low end of 95 mg/100 ml. That does not change my assessment of Mr. Canavan’s impairment.

[283] Given the range of 124-155 mg/100 ml for Mr. Canavan’s BAC, I do not find it necessary to address the merits of Ms. Wallage’s opinion that somebody may be impaired with a reading that is as low as 50 mg.

[284] Mr. Canavan’s evidence on what he thought he would have been doing also revealed a failure in judgment, given what actually occurred. His explanation that he would not have been driving in excess of the speed limit especially since the roads were damp and because he was aware of a speed trap in the vicinity of the collision, undermined his own credibility, but more importantly amplified a complete failure in his judgment. If he knew that he should be careful on the particular stretch of the road, he should not have been speeding. The problem with Mr. Canavan’s speculation is that it flies in the face of the uncontroverted evidence of a direct hit, an estimated speed for Mr. Canavan at 30-40 km above the speed limit, the magnitude of the damages to the Honda and to his own vehicle, and his own failure to act in accordance with what he knew can only be explained by a failure in his judgment. He knew that he should not be speeding but he did it anyway. That failure is yet another indication of impairment.

[285] Mr. Canavan’s failure in judgment was also reflected in the contrast between his professed knowledge of the dangers of the particular stretch of Trafalgar Road, the location of a speed trap, and his decision to drink as much as he said he did immediately before his drive. Here too, there is something seriously problematic with Mr. Canavan’s explanation. If he knew there were speed traps, why would he drink as much as he did so close to that location and run the risk of a possible interception by the police? Such jeopardy also runs counter to Mr. Canavan’s suggested sensitivity to the requirements of the Highway Traffic Act, his concern that there be strict compliance with one’s statutory obligations, and that he not compromise his ability to drive, which he said was essential to be able to go to work. This failure in judgment compounds the accumulating indicia of impairment.

[286] Finally, if, as Mr. Canavan explained, he was as familiar with the particular part of Trafalgar Road because he travelled it twice a day daily, it is mystifying that he would not be able to explain or recall the momentary break in the sightline, caused by the landscape of the area and seek to attribute it to the existence a “third vehicle” and an evasive move by him. Charitably, the only explanation for such a contradiction rests with the enormity of Mr. Canavan’s error and his attempt to find some way to explain his impairment.

[287] Given the totality of the impairment indicators, I reject Mr. Canavan’s contention that he was not impaired. I am satisfied beyond a reasonable doubt that at the time the collision occurred, Mr. Canavan was impaired.

2. Was Mr. Canavan’s BAC over 80?

[288] The only way that Mr. Canavan could be found to have a BAC reading under 80 would be to accept his evidence that he engaged in bolus drinking in the twenty-five minutes or so prior to the collision. If Mr. Canavan were to be believed, he would have consumed almost 1.5 liters of beer in that 25 minute period, with half a litre in the first 15 minutes, and then an additional litre in the following 10 minutes. This time frame and the suggested quantity makes Mr. Canavan’s explanation implausible for a number of reasons.

[289] First, Mr. Canavan did not give any explanation as to why he drank the way he did that night. On his own account, the evening was uneventful. There was no suggestion by him that watching a bunch of teenagers playing hockey was stressful to trigger a need to de-stress with the consumption of 3 Tall Boys. Nor would watching players on the ice generate the kind of thirst that would require several drinks. Mr. Canavan may have been thirsty had he been playing ball hockey, as he was reported to have said to Mr. Terry or had he been playing hockey, as he was reported to have said to Mr. Sharpe. But Mr. Canavan’s express denial that he played hockey and his explanation that he was only watching hockey prevents me from making a finding that he was excessively thirsty. On Mr. Canavan’s own account at trial of his evening, there was no reason for Mr. Canavan to be as thirsty as his conduct would otherwise suggest.

[290] Second, there was no explanation for his rush to finish the three drinks in the given twenty-five minutes. On Mr. Canavan’s own testimony, his brother was expected to be home at any moment. His pace during the course of the evening was laid back. So why the rush and in particular, why the acceleration in the drinking in the last ten minutes of his stay? Why not slow down to enjoy the drinking and finish at a normal pace? Common sense would suggest that at a slower pace, Mr. Canavan would have also given his brother more time to get home and therefore have a visit.

[291] Third, Mr. Canavan’s very detailed account of his drinking, down to the minute, and his precise memory of his particular drinking pattern that night was curious having regard for the traumatic accident that followed. The level of detail stood in stark contrast to his casual or approximate memory of his activities just prior to his alleged drinking and the of course his virtually complete inability to remember anything about the accident and the several hours that followed. To be clear, I am not critical of Mr. Canavan’s difficulties with his memory following the accident. That would actually be quite understandable given his own injuries and the magnitude of the accident. What was highly suspect however was his detailed memory of the twenty five minutes that preceded the accident.

[292] My questioning of Mr. Canavan’s claim to bolus drinking was compounded by my discovery of a corresponding re-alignment of Mr. Canavan’s BAC down to ranges below a measure of 80. Having told just about everyone that he consumed 3 Tall Boys that night, Mr. Canavan then had to have a way to explain his BAC readings. Absent the bolus drinking, his blood sample analysis produced was reported to be in the range of 124 mg -155mg/100 ml. On the reported pattern of drinking, the BAC readings of the blood samples dropped to 64 mg – 81 mg /100 ml. Although as between the blood sample and the breath results, I place greater reliance on the blood samples and make my findings principally on those results, on this particular consideration, the breathe results, reduced for bolus drinking would bring Mr. Canavan’s BAC down to a range of 40 mg - 80 mg / 100 ml. But to achieve that result, and having regard for Ms. Wallage’s bolus drinking calculations and evidence generally about elimination rates, 2 of the 3 Tall Boys would have had to be consumed in the 15 minutes prior to the collision. Except for the situation of all 3 drinks in the 15 minutes prior to the accident, any other combination in the drinking pattern would bring the readings back up to the 80 + range. Against these observations, I find it very remarkable that Mr. Canavan’s explanation of bolus drinking would dovetail so neatly with the corresponding calculations to produce a reading possibly as low as 40 mg/100 ml and no higher than 81 mg/100 ml. I can only conclude that the idea of bolus drinking was contrived to produce the lowest possible BAC.

[293] Mr. Canavan’s suggested “bolus drinking” stands in further contrast to his statements to a number of individuals concerning his consumption of 3 Tall Boys and his evening’s activities. Having gone as far as to tell people that he consumed three Tall Boys, and having also said things like he came from playing ball hockey, from playing hockey and that the distance between Oakville and the accident location, measured in time, was 45 minutes, it does make it rather curious that he would not say anything about being at his brother’s place down the street, or stopping in on his brother, or grabbing a few drinks at his brother’s place.

[294] Finally, and having regard for the noted concerns, Mr. Canavan’s suggested drinking pattern on the particular evening defies common sense. In its consideration of “bolus drinking”, the Ontario Court of Appeal has said that triers of fact may resort to the common sense inference that people normally do not ingest large amounts of alcohol just prior to, or while driving, see: Grosse, Hall, and R. v. Bulman, [2007] O.J. No. 913, 2007 ONCA 169. In this instance, focusing for a moment on the 2 Tall Boys, it makes no sense that Mr. Canavan would drink almost a litre of beer in the space of 10 minutes, having already consumed 437 ml in the preceding 15 minutes.

[295] Given the totality of my concerns, I find no ascertainable reason or explanation for why Mr. Canavan would drink the way he did and accordingly I do not accept his explanation that he engaged in “bolus drinking” just prior to the accident.

[296] Having rejected Mr. Canavan’s evidence, and on the basis of Ms. Wallage’s largely uncontested evidence, which I do accept, Mr. Canavan’s BAC readings were in the 124-155 mg/100 ml range and accordingly were higher than a BAC of 80. Even if I were to rely on the breathe tests, Mr. Canavan would still have a reading of 95 mg/100 ml, and therefore be above the 80 mark.

3. Did Mr. Canavan’s impaired ability to operate a vehicle cause the death of Janice Bye and the bodily harm to Alexa Bye and Meghan Culver?

[297] I find that Mr. Canavan’s impaired ability to operate a motor vehicle is what caused the death of Janice Bye and the bodily harm to Alexa Bye and Meghan Culver. In addition to my reasons for disbelieving Mr. Canavan’s explanation concerning the existence of a third car, my disbelief is further amplified in the context of a causation analysis.

[298] Mr. Canavan’s explanation of causation is of no assistance because it only represented his best guess of what occurred and it was based on what he heard from others and what he would have wished the explanation to be. He constructed his narrative only after he heard the testimonies of Messrs. Douglas and Vinden at the Preliminary Inquiry. In such circumstances, his explanation was entirely unreliable and incapable of raising a doubt over what occurred.

[299] On the balance of the evidence, the outcome of the accident, Mr. Canavan’s comments to the first responders and to Dr. Ferguson, and the supporting expert evidence offer a complete evidentiary basis for my findings and conclusions on what occurred. However, before I explain those findings, with the theory of the “third car” figuring so prominently, it is essential to review that evidence and explain the reasons for my rejection of that explanation as the basis of a reasonable doubt over causation.

[300] To begin with, there was no evidence to permit a finding that a ‘third car” was coming at Mr. Canavan and that because of such a car, he was forced to cross over into the southbound lane. The court heard evidence concerning a “third car” somewhere on the road from four witnesses: Messrs. Douglas and Vinden, Cst. Blacklock, and Mr. Flynn. With the exception of Cst. Blacklock, each gave evidence of the possible existence of a third car, some indicated where such a car would not have been, and Messrs. Flynn and Vinden talked about how such a car might have gotten away without a trace. Cst. Blacklock rejected the idea of a third car.

[301] On the specifics of the “third car” evidence, I found the testimonies of Messrs. Douglas and Vinden confusing. For starters, their memories were not very clear. Certain contradictions between their testimonies at trial and the Preliminary Inquiry could not be reconciled. Their lack of clarity could be explained by their respective relative distances from the Honda and by the passage of time. But such explanations only served to underscore the shortcomings of their evidence.

[302] Mr. Vinden believed he saw two sets of taillights but he was adamant that they were not situated side by side; they were in succession of one another. Despite Mr. Flynn’s opinion that Mr. Vinden could not have seen the lights in succession, having regard for Mr. Vinden’s distance, and the downhill slope, I am prepared to find that Mr. Vinden’s vantage point in his truck and his estimated distance of half a kilometer might explain his description of the taillights and their positioning. That perspective, combined with the dark night and the weather conditions would also explain the confusion over the precise location of the car. But even that finding does nothing to allow for a finding that there was ever a third car or that if there was one, it was situated in the northbound lane, going southbound. Mr. Vinden was clear that the 2^nd set of taillights was also in the southbound lane.

[303] Mr. Flynn’s evidence on this point did not shed any light. He said that there was nothing on the road to prevent a third vehicle from passing the Honda and the Volkswagen without leaving a mark. If such a car were in the mprthbound lane and Mr. Canavan were able to move out of the way, it would have been able to continue with its travel unimpeded. That evidence did not amount to anything more than a common sense inference that if there are no obstacles on the roadway and there is enough clearance, a vehicle could drive-off unimpeded. But such an opinion offered no insights as to why such a vehicle would be in the northbound lane or where it would be located relative to the rest of the traffic.

[304] Mr. Flynn touched on the idea that a “third car” might have been ahead of the Honda and therefore somewhere between Mrs. Bye and Mr. Canavan but it was not explored by either the Crown or the defence in any great detail. If a “third car” were ahead of the Honda, might it have pulled into the northbound lane to avoid the oncoming Volkswagen? Would such a manoeuver resolve Mr. Vinden’s insistence that the two taillights were never side by side? Might it also verify the reason for which Mr. Douglas never saw a “third car’ between him and the Honda or passing the Honda? Might it explain why Mrs. Bye had no time to take any evasive action or react, other than to say “oh shit” immediately before the collision? None of these questions were explored by the parties and it is not the role of the trier of fact to engage in additional investigation or come up with other possible explanations. I therefore cannot make any finding that there was a third vehicle directly in front of the Honda. I only raise the questions to underscore the weaknesses and the limitations of the evidence that concerned the “third car” and therefore to underscore the reasons to reject that theory.

[305] Against these weaknesses, and contrary to Mr. Flynn’s suggestion that a vehicle could be situated in a space between the Honda and the Volkswagen, the evidence from Cst. Blacklock revealed the implausibility of such a scenario. On her evidence, which I accept as thorough and reliable, for a “third car” to have been the cause of the accident, it would have had to be situated in the northbound lane and in a space of 300 metres, that being the estimated distance as between the bottom of the hill and the point of impact.

[306] More particularly, the court heard evidence that the outer distance between the bottom of the hill on Trafalgar Road and the point of impact was between 250 and 300 metres. Cst. Blacklock gave an additional estimate of 60 metres between the beginning of the crest on the road and the point of impact. Mr. Canavan thought that the distance between the height of the crest and the point of impact was about 36 metres. On such measurements, Mr. Canavan would have had mere seconds to see a vehicle coming in his direction, process that information, and take the appropriate evasive steps. Given Cst. Blacklock’s estimate that at 100 km / hour, for every second of travel one would travel 27.5 metres, Mr. Canavan would have had somewhere between 2 and 10 seconds to take evasive action. Since on his own evidence Mr. Canavan was already some distance up the hill before he saw what he described as a first set of lights, that distance would be something less than 300 metres. At 100 metres away from the point of collision, Mr. Canavan would have had 3.5 seconds to react. At 60 metres, he would have had 2 seconds to react.

[307] If I add those estimates to the uncontested evidence that it takes 1.5 seconds to perceive and react to a threat, Mr. Canavan would have had all of 2 seconds to move into the southbound lane and line up in front of the Honda. Given his evidence that he thought he would have been driving below the speed limit, his reaction would have had to include time to accelerate up from somewhere below the speed limit to get to a measure of 30-40 km above the speed limit, which was the speed estimate attributed to him at the point of collision. There was no evidence before this court that such a reaction could occur in split seconds, never mind the possibility that in that time frame a driver could move into the opposite lane and align himself directly in front of the oncoming vehicle, at a speed of 30-40 km above the speed limit. On such measures and estimates, it simply defies logic and common sense that somebody could react so quickly. In other words, as a practical matter, given the space within which Mr. Canavan would have operated I cannot see how he would have had sufficient time to move into the southbound lane and line up so precisely so as to have a direct hit on the Honda. I therefore reject the theory of a ‘third car” as the root cause to the collision.

[308] In contrast to the difficulties surrounding the theory of a “third car”, I have no reason to reject Cst. Blacklock’s unchallenged evidence of how the collision occurred. The Volkswagen collided violently and directly into the Honda. Given her thorough analysis of the scrapes, fluids, and gouges on the ground, the location of other debris, the final resting places of the cars with the corresponding push-back of the Honda vehicle by ten metres, the transfer of the Volkswagen’s plate marks onto the Honda, the respective crush analysis and the ability to line up the two vehicles to demonstrate the extent of direct head-on hit, I accept her conclusion that Mr. Canavan would have been travelling in the southbound lane for some time, at an excessive speed, and without any appreciation for his error.

[309] The absence of any breaking, the comparative damage to the vehicles, with the Honda’s damages being more pronounced, the vehicles’ respective resting points compound my finding that Mr. Canavan was oblivious to his position on the road. If there even was a ‘third vehicle” somewhere on the road, it played no role in the accident and it did not cause Mr. Canavan to cross into the southbound lane.

[310] The totality of that evidence leaves me with no doubt the collision and the resulting losses can only be explained by Mr. Canavan’s impairment and not by the existence of a “third car”. Regrettably, I find that Mr. Canavan did not realize that he was in the wrong lane. His description of the lights ahead and the momentary interruption was not due to any evasive action; it was due to the hill’s topography and its crest. The force of the head-on collision as well as its direct congruency leads me to the finding that Mr. Canavan had no time to react to the oncoming Honda and he did not make any attempt to avoid it. Instead, he drove right into the Honda, causing the devastating harm to the occupants of the Honda and to himself.

[311] In light of these findings, I am satisfied beyond a reasonable doubt that Mr. Canavan’s impaired ability to operate a motor vehicle is what caused the death of Janice Bye and the bodily harm, to Alexa Sara Bye and Meghan Culver.

CONCLUSION

[312] Given my findings and conclusions, I find Mr. Canavan guilty on all counts.

Tzimas J.

Released: July 4, 2018