Court File and Parties

Court File No.: CR-39700-24-68-00AP Date: 2025-11-03 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent – and – Edgar Jones, Appellant

Counsel: Benjamin Steinberg-Zwirek, for the Respondent Brandon Crawford, for the Appellant

Heard: May 23, 2025

Reasons on Summary Conviction Appeal

McVey J.

Overview

[1] On May 13, 2024, the Appellant was found guilty after trial of impaired operation of a motor vehicle and having a blood alcohol concentration exceeding the legal limit within two hours of operating a motor vehicle, contrary to sections 320.14(1)(a) and 320.14(1)(b) of the Criminal Code, as well as operating a motor vehicle while licensed as a young driver with a blood alcohol concentration over zero, contrary to section 44.1(5) of the Highway Traffic Act. The Appellant appeals his convictions on the basis that the trial judge committed an error of law and misapprehended material aspects of the evidence.

[2] For reasons that follow, the appeal is dismissed.

Background

[3] On September 24, 2022, at approximately 7:00pm, a vehicle driven by the Appellant veered off the road, flipped multiple times end over end, and crashed into a ditch. Two men in a vehicle travelling in the opposite lane saw the latter part of the crash, though neither saw the Appellant's manner of driving before the incident itself. They called 911 and stayed with the Appellant until the paramedics and police arrived on scene.

[4] Cst. Palmer arrived on scene first and spoke with the witnesses. Cst. Falle arrived about a minute later. Both officers were wearing body worn cameras. Cst. Palmer informed Cst. Falle that the civilian witnesses believed that they could "smell booze" on the Appellant, and that the Appellant was currently inside the ambulance receiving care from paramedics.

[5] Cst. Falle went to speak directly with the civilian witnesses. When Cst. Falle asked them whether they had "smelled booze" on the Appellant, one of the males answered, "he was stumbling but who is to say, he hit his head." One of the males later stated during that same interaction, "the kid is hammered and was freaking out."

[6] Cst. Falle then told Cst. Palmer that he was going to "make grounds" and approached the ambulance. In my view, the expression used by Cst. Falle was simply another way of him stating, "I'm going to investigate to confirm what I've been told." Cst. Falle was clearly under an obligation to do precisely that: see R v Singh, 2024 ONCA 66, at para. 73. Cst. Falle also testified at trial that he was required, as the acting sergeant and supervisor on scene, to assess the extent of any injuries suffered by the Appellant because OPP policy required that certain steps be taken if the injuries were serious, e.g., requesting the assistance of tactical traffic collision investigators, among other things.

[7] Cst. Falle approached the ambulance and positioned himself just outside the open passenger-side door. The rear doors of the ambulance were closed. At that time, the Appellant was seated behind a paramedic, who was standing on the doorway steps facing away from the officer. The paramedic was obstructing Cst. Falle's view of the Appellant. Cst. Falle remained there for approximately 20 seconds before walking back towards Cst. Palmer. Cst. Falle neither saw nor interacted with the Appellant during that first visit to the ambulance.

[8] Cst. Falle then had another brief conversation with the civilian witnesses. They advised Cst. Falle that while they were waiting with the Appellant for the authorities to arrive, the Appellant received a phone call through his vehicle's Bluetooth system. The caller stated to the Appellant, "you're not driving, are you?" The Appellant told the caller he had to go and hung up.

[9] Cst. Falle then engaged in a discussion with Cst. Palmer regarding the making of a breath demand and whether breath testing would be conducted at the hospital. Specifically, Cst. Falle told Cst. Palmer that he would make the breath demand at the hospital. Cst. Palmer asked Cst. Falle if he had spoken with the driver yet. Cst. Falle responded, "No, but I can smell booze coming out of the ambulance though." Cst. Palmer responded by telling Cst. Falle that he should arrest the Appellant for a straight impaired and that Cst. Palmer will bring the instrument to the hospital.

[10] In my view, the discussion regarding a future arrest amounted to a reasonable exchange regarding a likely scenario, based on the information available to Cst. Falle at the time. There is nothing improper—and indeed much to commend—in officers coordinating logistics in advance to ensure an impaired investigation unfolds smoothly, efficiently, and without undue delay. Cst. Falle arrived at the scene to discover that the Appellant had been involved in a serious single-vehicle accident during calm weather and daylight conditions, with no apparent explanation for its occurrence; the civilian witnesses—though equivocal to an extent—told Cst. Falle that "the kid is hammered" and that the Appellant had received a call from someone shortly after the accident who seemed concerned that he could be driving; and, Cst. Falle can be heard on his bodycam footage telling Cst. Palmer that he could smell alcohol emanating from the ambulance. In the circumstances, it is unsurprising that the officers engaged in a discussion regarding the timing and location of a potential arrest and subsequent breath testing; however, in the trial judge's view—a view with which I agree—such a conversation did not, in and of itself, establish that Cst. Falle had definitively resolved to proceed in that manner without first interacting or observing the Appellant for himself.

[11] This interpretation of the conversation is supported by what Cst. Falle said to Cst. Palmer at the end of their conversation. As he headed back towards the ambulance a second time, he stated to her, "going to make some grounds now— make sure I have that." As I elaborate on further below, this supports the trial judge's finding that Cst. Falle wished to interact with the Appellant before finalizing his grounds and effecting the arrest.

[12] Cst. Falle then approached the ambulance a second time and positioned himself just inside the passenger-side door. He stood at that location behind the Appellant for approximately one minute while the paramedics asked the Appellant routine questions about his medical history. Cst. Falle did not identify himself or otherwise alert the Appellant to his presence. The trial judge rejected the notion that Cst. Falle had a surreptitious intent, however, finding instead that Cst. Falle simply wished to permit the paramedics the space necessary to perform their duties without interference or interruption.

[13] Cst. Falle took no handwritten notes regarding what he overheard while in the ambulance. The bodycam footage discloses that the paramedics were taking the Appellant's vital signs and that he appeared alert and responsive. The only information disclosed by the Appellant at that time was that he was not taking any prescribed medication and did not have allergies. Notably, nothing that the Appellant stated to the paramedics while Cst. Falle remained in the ambulance was tendered by the Crown at trial or used by Cst. Falle in forming his grounds, nor was it particularly private information. Cst. Falle testified that during this second visit to the ambulance, he could smell a strong odor of alcohol inside the rear cabin.

[14] After leaving the ambulance, Cst. Falle returned to speak with the civilian witnesses a third time. One of the males stated that when the Appellant exited his vehicle that "right away we were like this guy is messed up but hard to say ya know." One of the males confirmed a second time that they saw the Appellant stumbling but "hard to say because he hit his head."

[15] Cst. Falle then spoke with one of the paramedics who told him that they were ready to leave. Cst. Falle confirmed with the paramedic that (1) the Appellant was still cooperative and compliant; and (2) that the paramedics had not been drinking alcohol that evening. He advised the paramedic that he would follow the ambulance to the hospital.

[16] Cst. Falle then returned to the civilians a final time. One of the males stated that, "I don't want to say he was drunk for sure I don't know for sure. From what I could tell though for sure." Cst. Falle asked them whether they could smell alcohol from the Appellant's breath and one of the males responded, "Yea but like was it for sure maybe maybe not. I didn't want to get too close."

[17] After speaking with the two males, Cst. Falle advised Cst. Palmer that he was not going to arrest the Appellant now and could do it at the hospital. The trial judge found as a fact that Cst. Falle's decision-making in that respect was motivated solely by the Appellant's medical needs.

[18] Cst. Falle arrived at the hospital around 7:51pm and stood behind the Appellant's stretcher for approximately six minutes while making notes and waiting for the paramedics to organize themselves and the Appellant. At 8:01pm, Cst. Falle introduced himself to the Appellant and advised him that he was investigating the accident and that he believed the Appellant was impaired by alcohol. The Appellant answered, "okay well um when I was driving I do confess I did…" Cst. Falle immediately interrupted the Appellant, telling him, "just hold on don't go any further I'm going to read some stuff to you." Cst. Falle then arrested the Appellant for impaired operation and provided him his rights to counsel, a caution, and the breath demand.

[19] The breath samples could not be taken at the time because the Appellant was taken for further medical examinations. At 9:21pm, based on the grounds provided by Cst. Falle, Cst. Palmer issued another breath demand to the Appellant. The Appellant provided two suitable samples of his breath at 9:28pm and 9:51pm.

Trial Decision

[20] The trial judge rejected the Appellant's ss. 7, 8, 9, 10(a) and 10(b) Charter claims. The trial judge found that the Appellant was not detained until 8:02pm, the time of his arrest at the hospital. Further, the trial judge found that Cst. Falle's grounds to make the breath demand also crystallized at the time of his arrest—not at the scene of the accident—once Cst. Falle was able to observe the Appellant directly. As a result, the trial judge found that Cst. Falle did not breach the Appellant's ss. 8, 9, 10(a) or 10(b) rights at the scene, as the Appellant had not been detained at that time. Moreover, the trial judge found that Cst. Falle had the requisite grounds to arrest the Appellant and make a breath demand.

[21] Further, the trial judge held that Cst. Falle had not breached the Appellant's section 8 rights when he entered the ambulance for approximately sixty seconds without announcing his presence.

[22] Finally, the trial judge concluded that she would not have excluded the evidence under section 24(2) even had Charter breaches arisen on the evidence given that the officers did not conduct themselves in bad faith, breath samples are minimally intrusive, and there was a significant public interest in having the case determined on the merits. The trial judge described Cst. Falle as "diligent, honest, forthright, and clearly focused on the rights of the accused."

Grounds of Appeal

[23] The Appellant raises three grounds of appeal: (1) the trial judge erred in law when finding that the Appellant did not enjoy a reasonable expectation of privacy in the ambulance when being assessed by paramedics; (2) the trial judge materially misapprehended the evidence when finding that Cst. Falle smelled a strong odor of alcohol from "outside" the ambulance; and (3) the trial judge materially misapprehended the evidence when finding that Cst. Falle's grounds to make a breath demand crystallized at 8:02pm at the hospital rather than earlier at the scene of the accident. The Appellant contends that these misapprehensions of fact and errors in law lead the trial judge to reject his Charter claims.

[24] Fundamentally, in my view, this appeal asks me to revisit the evidence and substitute my own view of Cst. Falle's credibility and reliability. Such factual determinations, however, lie beyond the proper ambit of appellate review, absent a demonstrable legal error or a palpable and overriding mistake. I see no such error in the trial judge's reasons.

[25] I consider each ground of appeal below.

Misapprehension of Evidence – Odor of Alcohol

[26] The Appellant does not argue that the trial judge misunderstood the substance of the evidence, but rather asserts that she erred by failing to adequately consider inconsistencies in Cst. Falle's testimony related to whether and when he detected an odor of alcohol from the ambulance. I cannot accept this argument.

[27] The significance of any alleged inconsistency must be assessed within the context of the evidence and the specific issues raised at trial: see R v Polemidiotis, 2024 ONCA 905, at para. 37. Put differently, the weight attributed to any inconsistency—and its effect on a witness's credibility or reliability—is inherently fact-specific and, absent a legal or palpable and overriding error, warrants deference on appeal: see Polemidiotis, at para. 37. Here, the trial judge was aware of the purported frailties in Cst. Falle's evidence and resolved them in his favor. Her analysis on this point is owed appellate deference.

[28] The Appellant argues that the trial judge materially misapprehended the evidence when finding that Cst. Falle smelled a strong odor of alcohol when standing "outside" the ambulance, arguing that such a finding was simply unavailable given Cst. Falle's admitted uncertainty on the point. First, the trial judge did not explicitly find that the officer detected alcohol when he was standing "outside" the ambulance, i.e., during the first rather than the second visit to the ambulance. Rather, the trial judge found that Cst. Falle detected a strong odor of alcohol when "standing briefly at the side door" of the ambulance when the Appellant's vital signs were being taken. The bodycam footage and other evidence at trial establishes that the Appellant's vital signs were being taken during the second visit that Cst. Falle made to the ambulance, where he stood slightly inside the ambulance, made a contemporaneous note in his notebook regarding an odor of alcohol, and was steadfast in his trial evidence that he detected an odor of alcohol at that time.

[29] While Cst. Falle expressed uncertainty during his testimony about whether he detected an odor of alcohol during his first visit to the ambulance, he remained consistent and unwavering in his assertion that he perceived such an odor during the second visit, while inside the ambulance. Further, Cst. Falle's evidence in that respect was amply supported by other evidence in the record, including that Cst. Falle can be seen on bodycam footage asking paramedics if they had been drinking that evening because he wished to rule out the possibility that they were the source of the odor he detected.

[30] In my view, given that the trial judge referred specifically in her reasons to the Appellant having his vital signs taken at the time that Cst. Falle detected the odor, I find that she was referring to Cst. Falle's second visit to the ambulance. As previously noted, a finding that Cst. Falle detected an odor of alcohol at that time was fully available to her on the record.

[31] Second, when finding that Cst. Falle detected an odor of alcohol on the second visit, the trial judge was alive to the earlier controversy in Cst. Falle's evidence regarding whether he could smell alcohol during his first trip to the ambulance. During cross-examination but before Cst. Falle was shown the bodycam footage where he advised Cst. Palmer after the first visit that he could smell alcohol from the ambulance, Cst. Falle accepted that he "could not have smelled alcohol on Mr. Jones at that point" given where he was standing outside the ambulance. However, after he was shown bodycam footage of his contemporaneous statement to Cst. Palmer, he reconsidered his position and qualified his evidence. At that point, he testified that it was possible that he smelled alcohol during the first trip to the ambulance given his proximity to the door, but that he could not be sure. However, he testified that he was certain that he smelled alcohol on the second occasion while inside the ambulance and had made a note to that effect in his notebook.

[32] The trial judge addressed this area of Cst. Falle's evidence in her reasons and accepted Cst. Falle's explanation for the inconsistency in his testimony. She accepted that he had been mistaken "until he was able to view the video footage." The resolution of that issue fell squarely within the trial judge's purview.

[33] Third, even had the trial judge found that Cst. Falle detected alcohol during the first visit to the ambulance, in my view, that finding was also available to her. Moments after Cst. Falle attended the ambulance for the first time, he told Cst. Palmer, when asked whether he had spoken to the driver yet, "No, but I can smell booze coming out of the ambulance though." In cross-examination, after being shown the bodycam footage, Cst. Falle testified that he could have smelled alcohol on the first occasion as well. While the content of the contemporaneous statement to Cst. Palmer cannot be admitted for its truth, its timing lends support to Cst. Falle's in-court testimony and would lend support to a finding that he did, in fact, detect the odor of alcohol from the ambulance during the initial encounter.

[34] Moreover, I disagree that such a finding, had it been made, would defy common sense and logic. By the time Cst. Falle approached the ambulance for the first time, the Appellant had already been inside the ambulance for a considerable period. The rear cabin of the ambulance is a confined space, and the rear doors of the ambulance were closed. If an odor of alcohol were indeed emanating from the Appellant's breath, it could have readily permeated the confined space of the rear cabin of the ambulance within a brief period. The odor would have had limited avenues for dispersion, with the rear side door—where Cst. Falle was positioned—being the only exit point.

[35] Further, I note that Cst. Falle did not agree at the outset of his cross-examination in this area that he could not have detected an odor of alcohol from the ambulance, generally, but rather agreed that he could not have detected an odor of alcohol directly from the Appellant. The precise suggestion initially put to Cst. Falle—with which he agreed—was that "you obviously could not have smelled alcohol on Mr. Jones at that point, right?" Later in his evidence, after having his memory refreshed by the bodycam footage, Cst. Falle testified that he could have smelled alcohol "coming out of the ambulance," as he told Cst. Palmer. This is not necessarily inconsistent with his earlier evidence.

[36] Finally, when precisely Cst. Falle smelled the alcohol—presuming the trial judge accepted, as she did, that he detected it at some point during his on-scene investigation—is neither here nor there, save and except to the extent his evidence on the point potentially undermined his overall credibility and reliability. The trial judge accepted that Cst. Falle refrained from arresting the Appellant immediately, recognizing his intention not to interfere with the medical treatment that the Appellant was receiving at the time. Whether Cst. Falle smelled alcohol the first time he attended the ambulance or the second, or both, the point is that the trial judge accepted, as a fact, that he smelled it before he arrested the Appellant and issued a breath demand. The trial judge was not troubled by Cst. Falle's evidence in this area, finding that any mistakes he made before having his memory refreshed did not undermine his credibility or reliability. The trial judge was fully apprised of the entirety of the officer's evidence on this issue. The trial itself was not lengthy or complex, and the alleged weaknesses in the officer's testimony were thoroughly explored by counsel in his capable submissions. The trial judge, however, was satisfied that any earlier inaccuracies stemmed from the officer's lack of opportunity to review the bodycam footage. That determination was hers to make.

[37] In the end, the trial judge was satisfied that Cst. Falle detected an odor of alcohol emanating from the ambulance—and by extension from the Appellant after having confirmed that the paramedics had not been drinking—well before the breath demand was made. This finding was entirely open to her on the evidence, particularly given that Cst. Falle was unshaken in his evidence that he had smelled alcohol while inside the ambulance; he made contemporaneous notes confirming the odor of alcohol at that time; and Cst. Falle advised paramedics at the scene that he smelled alcohol from the ambulance and sought to confirm whether any of the paramedics had been drinking. To that end, I disagree with the Appellant that the "evidence does not allow the trier of fact to determine whether Cst. Falle smelled alcohol and, if so, when."

[38] For the above reasons, I reject this ground of appeal.

Misapprehension of Evidence – Formation of Grounds to Issue Breath Demand

[39] The trial judge found that Cst. Falle subjectively formed grounds for a breath demand at the hospital, based on a supposed intention to wait until interacting with the Appellant before finalizing his grounds—a finding that, according to the Appellant, is inconsistent with Cst. Falle's own testimony. The Appellant argues that this misapprehension is material because it impacts the timing of the Appellant's detention—claiming that he was detained the moment that Cst. Falle formed grounds to issue a breath demand—and, consequently, the analysis of whether the Appellant's ss. 8, 9, 10(a) and 10(b) Charter rights were infringed at the scene.

[40] The Appellant maintains that the trial judge misapprehended the evidence in this area in two material and related ways: (1) when finding that Cst. Falle subjectively formed his grounds to arrest the Appellant while at the hospital despite his unequivocal evidence to the contrary; and (2) when finding that Cst. Falle wished to interact with the Appellant personally before forming his grounds despite there being no evidence to that effect. The Appellant argues that these misapprehensions played an essential part of the reasoning process leading to conviction because if Cst. Falle formed his grounds at the scene—as the Appellant contends that Cst. Falle ceded in his evidence—then Cst. Falle did not issue the breath demand as soon as practicable, nor did he provide the Appellant his ss. 10(a) and 10(b) rights promptly upon detention.

[41] For the following reasons, I cannot give effect to this ground of appeal.

[42] The trial judge found that (1) the Appellant was not detained until Cst. Falle arrested him at the hospital; and (2) that Cst. Falle's grounds "crystallized" once he arrived at the hospital and that it was "reasonable for the officer to have concluded that he needed to wait until he could speak with the accused himself or make further observations of him before arriving at the required subjective belief that he had sufficient grounds." The Appellant contends that these findings are untethered to the evidence. I disagree.

[43] First, there was a basis in the evidence for the trial judge's finding that Cst. Falle wished to first interact with the Appellant before effecting the arrest and making the breath demand, notwithstanding that Cst. Falle accepted in his evidence that he "had grounds" to arrest the Appellant while at the scene. On two occasions, Cst. Falle approached the ambulance to further his investigation by observing and potentially interacting with the Appellant directly. He did not testify that he attended the ambulance to arrest the Appellant, but rather to further his investigation. In examination-in-chief, Cst. Falle also testified that "I felt I did have grounds to make the arrest, just that I felt I that it would be more prudent to allow him to arrive to the hospital first before I continued the investigation." Further, at the end of his cross-examination, when counsel for the Appellant put to Cst. Falle that he did not make the breath demand until he got to the hospital despite having formed grounds at the scene, Cst. Falle responded, "that is correct because I had the opportunity at that point to actually have that conversation. Now that he had been seen, I had an opportunity to talk to him face-to-face, and initially commence my investigation with him from my firsthand observation –or my firsthand direct contact with him directly."

[44] Based on the above, in my view, the trial judge's finding that Cst. Falle wished to interact with the Appellant before making the final decision to arrest him is supported by the evidentiary record. I say this accepting that Cst. Falle ceded numerous times in his evidence that he had the requisite grounds at the scene to arrest the Appellant. However, two things can be true at one time. Cst. Falle had the subjective and objective grounds at the scene to believe that the Appellant had committed the offence of impaired operation of a motor vehicle, yet still wished to observe the Appellant for himself before acting on those grounds. In my view, that is what the trial judge meant when she found that Cst. Falle's grounds "crystallized" at the hospital. The trial judge did not consider this unusual or unreasonable, and neither do I.

[45] Second, even if the trial judge erred in her understanding of the timing of Cst. Falle's grounds, in my view, that error would not have impacted the outcome in the case, given her finding that Cst. Falle's conduct throughout the investigation was consistently driven by a concern for the Appellant's physical well-being. Accordingly, even if Cst. Falle's grounds to issue the breath demand had "crystallized" at the scene, the delay in making the demand was justified in the circumstances and did not amount to a breach of the Appellant's Charter rights. Notably, the police neither observed the Appellant during his medical treatment at the scene—except for a brief sixty second period that I discuss more fully below—nor did the police accompany the Appellant in the ambulance to the hospital, thereby lacking any opportunity to make observations or elicit evidence. The Appellant was transported to the hospital solely by paramedics, and no evidence was obtained from him during that time. This supports the finding that the delay in issuing the demand was not a ruse to elicit evidence surreptitiously but a genuine attempt at prioritizing the Appellant's care, a fact as found by the trial judge.

[46] Finally, even if Cst. Falle had finally resolved to issue the breath demand at the scene, and the subsequent delay in doing so were somehow unjustified, thereby implying that the Charter required Cst. Falle to interrupt the Appellant's medical treatment, arrest and handcuff him, issue the demand, and accompany him to the hospital—a proposition I reject—any resulting breach, in these circumstances, could not reasonably call for the exclusion of the breath samples.

[47] As found by the trial judge, Cst. Falle's decision-making was driven out of concern for the Appellant's health. Breath testing is minimally intrusive. No incriminating evidence was gathered from the Appellant during the delay in making the demand; in fact, the police did not even observe him during the ambulance ride. And there is a high societal interest in having allegations of impaired driving adjudicated on the merits given the damage such criminality visits on our communities year after year. This was particularly true on these facts where the Appellant was involved in a serious accident that easily could have taken his life or the lives of other innocent parties.

[48] In summary, given the trial judge's findings regarding Cst. Falle's motivations, the point at which Cst. Falle's grounds to issue the demand "crystallized"—whether at the scene or at the hospital—would have had no bearing on the course of events as they eventually unfolded. Cst. Falle was waiting either way to ensure that the paramedics could leave promptly for the hospital. As Cst. Falle testified, although the Appellant did not appear to have serious injuries, he had sustained a head injury that in Cst. Falle's experience could escalate quickly and with little notice. Cst. Falle testified that he saw no need to arrest the Appellant at the scene, as the Appellant was cooperative with paramedics and receiving medical attention. He further explained that effecting an arrest at that time would have unnecessarily delayed the Appellant's transport to the hospital.

[49] Put differently, Cst. Falle believed that delaying the breath demand and arrest was in the Appellant's medical interests. The trial judge accepted this evidence and found no fault in Cst. Falle's decision to prioritize the Appellant's care. Assuming Cst. Falle had fully formed his grounds at the scene, his decision to delay the arrest and breath demand was reasonable in the circumstances and did not breach the Appellant's Charter rights.

[50] Even if Cst. Falle's decision to delay the arrest and breath demand ran contrary to the Charter, I agree with the trial judge that the exclusion of evidence could not be justified.

[51] Finally, I concur with the trial judge's conclusion that, even if Cst. Falle had finally formed grounds to issue the breath demand at the scene—raising a potential issue with the timing of the breath demand, an issue resolved above—the Appellant was nonetheless not detained while in the ambulance, and his rights under sections 10(a) and 10(b) of the Charter were not engaged.

[52] Even if Cst. Falle had formed his grounds to issue the breath demand at the scene, he chose not to act on those grounds, prioritizing the Appellant's medical care instead. An officer's subjective intentions or beliefs do not, in and of themselves, constitute a detention; rather, it is their actions and words that determine whether a detention has occurred. A detention does not occur until the police take actions or make statements that effectively restrain—either physically or psychologically—an individual's liberty.

[53] On this record, there is no evidence that Cst. Falle did anything to detain the Appellant while at the scene. Indeed, Cst. Falle never engaged with the Appellant while in the ambulance, let alone restrict his liberty in some way or make a restrictive demand or direction. In the words of Rosenberg J.A. in LaChappelle, the Appellant was detained in the ambulance by virtue of "his own injuries." The fact that Cst. Falle left the Appellant alone, and that the Appellant was unaware of Cst. Falle's presence, undermines any suggestion that a psychological detention occurred, and Cst. Falle did not physically restrain the Appellant in any way whatsoever. Until the Appellant was arrested at the hospital, he had not been physically restrained nor placed under any legal obligation to comply with a restrictive demand or direction.

[54] The fact that Cst. Falle would not have permitted the Appellant to leave had the Appellant declined to accompany the paramedics does not, in and of itself, establish that the Appellant was detained within the meaning of the Charter: see R v MacMillan, 2013 ONCA 109, at para. 37. As noted by the Court in MacMillan, relying on R v Clayton, 2007 SCC 32, it is not "until the officer's subjective intent is accompanied by actual conduct that the intent becomes relevant for constitutional purposes": at para 37; see also R v Scott, 2024 ONCA 608, at para 119. Even if Cst. Falle formed grounds to arrest the Appellant and issue the breath demand at the scene, he did not take any steps toward effectuating that arrest or otherwise detaining the Appellant until arriving at the hospital.

[55] In summary, the trial judge did not materially misapprehend the evidence. Her finding that the officer made a final decision to arrest the Appellant at the hospital once able to see him face-to-face was supported by the record and the officer's evidence when viewed as a whole. Even had the trial judge been wrong on that front, and Cst. Falle's grounds to arrest "crystallized" at the scene, that did not result in the Appellant's detention; his s. 10(a) and 10(b) rights were not triggered; and his decision to delay the breath demand was entirely justified. Even had the delay not been justified, there is no realistic possibility that the delay in reading the breath demand, in the circumstances of this case, could have resulted in the exclusion of the subsequent breath readings.

Reasonable Expectation of Privacy in the Ambulance

[56] The Appellant argues that the trial judge erred in law when finding that the Appellant lacked a reasonable expectation of privacy in the ambulance while Cst. Falle was "surreptitiously" observing him. The Appellant maintains that the trial judge failed to conduct a "case-specific, contextual analysis" as required by the Ontario Court of Appeal in R v S.S., 2023 ONCA 130. I disagree.

[57] The trial judge found that Cst. Falle's actions when entering the ambulance were reasonable given the nature of the investigation and the fact that the Appellant had been injured. She concluded that Cst. Falle had a dual purpose in entering the ambulance, to further his investigation and to ascertain whether certain notifications were required pursuant to OPP policy. The trial judge described Cst. Falle's conduct while inside the ambulance as "passive and reasonable" such that he did not breach the Appellant's section 8 rights in the circumstances. While the trial judge's reasons on this issue were not extensive, this was not a lengthy or complex trial. I see no error in her analysis and the evidentiary record supports her conclusion.

[58] During oral submissions, the parties provided the trial judge with both the Ontario Court of Appeal's decisions in S.S., and R v LaChappelle, 2007 ONCA 655, in which the Court dealt with when and how the informational right to privacy engages section 8 in the context of receiving medical care in ambulances. Counsel for the Appellant took the Court through the appropriate legal test. I am satisfied she was aware of the contextual analysis required and that the conclusion in LaChappelle was not necessarily dispositive of her analysis, given the Court's dicta in S.S.

[59] I will first review the appellate guidance in this area and then address why the trial judge correctly concluded that the Appellant's section 8 rights were not breached on the facts of this case.

[60] In LaChappelle, the Appellant had been convicted of impaired driving cause death and driving with a blood alcohol concentration over the legal limit. Officers on scene suspected that the Appellant had been drinking given the odor of alcohol emanating from his breath. An officer was directed to remain with the Appellant in the ambulance and at the hospital. He was not under arrest at that time. In the ambulance, the officer noted an odor of alcohol on the Appellant's breath when he was answering the paramedics' questions. While at the hospital, the officer observed the Appellant responding to questions with hand gestures or brief replies, which she interpreted as an effort to prevent others from detecting the odor of alcohol on his breath. Further, during her stay with the Appellant at the hospital, the officer noted that his speech was slurred and his eyes red and bloodshot. The officer concluded that she had reasonable grounds to arrest the Appellant for impaired operation of a motor vehicle and proceeded to effect the arrest on that basis.

[61] At trial, the Appellant challenged the admissibility of the blood and breath samples seized from the Appellant. The Appellant claimed that the officer breached his section 8 Charter rights by remaining with him in the ambulance and later at the hospital, during which time she allegedly obtained "information" that was subsequently relied upon in forming her grounds for arrest. The Court dismissed the Appellant's assertion of a right to "informational privacy" regarding the officer's observations, concluding that the Appellant's words and gestures during the interaction did not reveal information of a highly confidential nature: para. 36. After applying the contextual approach set out in R v Plant (1993), 84 C.C.C. (3d) 203, to assess whether section 8 of the Charter was engaged in relation to the information at issue, the Court held that it was not. The seriousness of the offence under investigation, the Appellant's lack of a territorial privacy interest in the ambulance, the absence of any interference with his medical care, and the non-sensitive nature of the information heard by the officer all supported this conclusion.

[62] The Court of Appeal revisited the issue of informational privacy in the context of medical care in S.S. There, the police found the 17-year-old Respondent trapped and unconscious in the driver's seat of a motor vehicle that had come to rest in a ditch on the side of the road. The front passenger of the Respondent's vehicle tragically died at the scene.

[63] After being removed from the vehicle, the Respondent was placed in the back of an ambulance, immobilized and wearing a neck brace. An officer entered the ambulance for investigative purposes and accompanied the Respondent to the hospital. The officer did not identify herself or otherwise announce her presence. In response to questions posed by the paramedics, the Respondent disclosed how fast he had been driving and the amount of alcohol he had consumed. Upon hearing the above answers, the officer arrested the Respondent while en route to hospital.

[64] The Respondent was acquitted at trial after the trial judge excluded evidence critical to the Crown's case owing to numerous Charter breaches. The trial judge concluded that the Respondent had a reasonable expectation of privacy while being medically assessed in the ambulance, and that the officer's collection of information during that period was unreasonable in the circumstances and violated section 8 of the Charter.

[65] The Crown appealed on the basis that the trial judge erred in finding that the Respondent's section 8 rights were triggered in the ambulance. In dismissing the appeal, the Court emphasized that its earlier decision in LaChappelle did not establish a "Charter-free zone in the back of ambulances": para. 36. Rather, the determination of whether a reasonable expectation of privacy exists in these circumstances must be contextual and case-specific: para. 36.

[66] Importantly, however, the Court did not state that LaChappelle had been wrongly decided. Rather, the Court concluded that, unlike the circumstances before it, the application of the Plant factors to the specific facts in LaChappelle did not give rise to a reasonable expectation of privacy: para. 37. However, the Court emphasized that the result reached in LaChappelle was not determinative on whether the Respondent in S.S. had a reasonable expectation of privacy during his time in the ambulance; rather, it was for the trial judge to make that determination based on the specific facts before her.

[67] The Court noted that the Respondent was not asserting a territorial right to privacy in the ambulance, but rather an informational privacy claim in the communications exchanged: para. 40. Whether section 8 is engaged in that context depends on whether "the information is the sort that society accepts should remain out of the state's hands because of what it reveals about the person involved, the reasons why it was collected, and the circumstances in which it was intended to be used": R v Gomboc, 2010 SCC 55, at para. 34; S.S., at para. 40.

[68] In S.S., the Court agreed with the trial judge that the information was collected as part of a medical assessment immediately after the Respondent had been seriously injured in a car accident, and the information obtained was intended to be used for the purpose of the Respondent's medical care. Further, given that the Respondent did not know that the officer was in the ambulance, he had no way of knowing that the answers shared with paramedics were being captured by a police officer for the purposes of a criminal investigation. With respect to the third Gomboc factor, the Court agreed that the speed at which the Respondent was travelling and the amount of alcohol he had consumed were not related to any private medical condition, and did not constitute core biographical information relating to the Respondent's lifestyle choices. That said, the Court emphasized that the information shared was self-incriminatory and that individuals are entitled to make a meaningful and informed choice regarding whether to share such information with the authorities: para. 49. The Court concluded that this latter factor distinguished the facts in S.S. from those arising in LaChappelle: para. 50.

[69] The Court of Appeal addressed the issue of section 8 protections in the context of medical care more recently in Singh. There, the Appellant crossed the center line of a four-lane street and struck an oncoming vehicle. The driver of the other vehicle and her four-year-old daughter were killed in the crash.

[70] Paramedics took the Appellant to the hospital where he was placed in one of several emergency care rooms closed off by a curtain. Shortly after the Appellant's arrival at the hospital, an officer was assigned to watch the Appellant and update his superiors on the Appellant's medical condition. The officer made no attempt to speak with the Appellant. At one time, the officer saw the Appellant nod his head in confirmation when asked by a doctor if he had been drinking. A more senior officer arrived later in the morning. Doctors confirmed for that officer that it was "medically safe" to speak with the Appellant, though he may be "out of it" on account of the morphine administered at the hospital and the Appellant's alcohol consumption. The officers attempted to interview the Appellant while he drifted in and out of consciousness. At one point, both officers placed their noses about two inches from the Appellant's mouth. Both confirmed a strong odor of alcohol.

[71] The police secured a search warrant and production order for the Appellant's blood samples taken at the hospital and his medical records, relying only on the Appellant's manner of driving, and the smell of alcohol emanating from his breath as noted by both officers. The trial judge found that the officers' smelling of the Appellant's breath while he was lying semi-conscious in the emergency ward violated his section 8 rights. The trial judge excised that information from the ITO and concluded that the redacted ITO could not justify the issuance of the search warrant and production order, resulting in a section 8 breach. However, the trial judge declined to exclude the blood samples and associated toxicology results pursuant to section 24(2) of the Charter.

[72] On appeal, the Appellant argued that the trial judge correctly held that the Appellant's section 8 rights were breached at the hospital when the officers smelled his breath given that (1) he was in and out of consciousness at the time; (2) he was receiving medical care at a hospital; and (3) the police were attempting to gather incriminating evidence against him: para. 41. In those circumstances, the Appellant claimed he had a reasonable expectation of privacy in respect of the information that could be gleamed from the odor of his breath.

[73] The Court held that police officers—whether at the roadside, or in ambulances or hospitals—routinely smell the breath of drivers for alcohol: para. 39. This conduct alone does not necessarily engage section 8 of the Charter. The Court further held that the Appellant had no reasonable expectation of privacy in the information revealed by his exhaled breath. The Court found that the conduct of the officers in smelling the Appellant's breath was no different than any other police officer who uses their eyes and ears to look for indicia of alcohol consumption.

[74] Finally, the Court underscored the importance of preserving the ability of individuals to communicate openly and candidly with medical personnel, recognizing that such dialogue is essential to the provision of effective medical care. However, the Court stressed that "not everything done, said, or observed in a hospital emergency room is wrapped in a cone of constitutionally protected privacy": para. 52. The Court acknowledged that many communications in the treatment room will involve the patient's ongoing medical treatment, however, and will therefore fall within the reasonable expectation of privacy.

[75] The Court found that by sniffing the Appellant's breath, the officers were not interfering with the Appellant's reasonable expectation of privacy with respect to personal information relating to the Appellant's medical treatment: para. 56. Finally, the Court concluded that the police were not trespassers when they entered the emergency room when they approached the Appellant with the implicit permission of his doctor. Indeed, "the police were under an obligation to try and speak with the appellant, assuming there were no medical reasons preventing them from doing so": para. 73.

[76] In the present matter, the Appellant argues that the trial judge erred in finding that the Appellant did not enjoy a reasonable expectation of privacy in the back of the ambulance while undergoing a private medical examination. I disagree.

[77] As in S.S., in the present matter, the Appellant did not and could not assert a territorial right to privacy in the ambulance. Rather, the Appellant claims that he an informational right to privacy regarding the information he was conveying to the paramedics at the time. Unlike S.S., however, the Appellant did not disclose to the paramedics any self-incriminating information regarding the offences under investigation. Further, the information he did convey was not highly confidential or private. Cst. Falle overheard the Appellant telling the paramedics that he did not take prescription medication and that he had no allergies. That is the extent of the information conveyed by the Appellant during the brief time that Cst. Falle was present. Cst. Falle testified that he did not even take notes of that information because it was not relevant to his investigation and learning that information was not why he was present in the ambulance.

[78] Further, Cst. Falle testified, and the trial judge accepted, that he attended the ambulance to assess the Appellant's injuries and speak with the Appellant if he was able to do so. As already noted, Cst. Falle was under an obligation to try and do both: see Singh, at para. 73. Cst. Falle waited inside the ambulance just long enough to see if he might get the chance to speak with the Appellant. He left the ambulance within sixty seconds once realizing that speaking with the Appellant at that time was not possible, given that he did not wish to interrupt the medical care that the Appellant was still receiving. The trial judge rejected the notion that Cst. Falle approached the ambulance to "surreptitiously" collect confidential information. This finding is amply supported by the record, including the exchange that Cst. Falle had with the Appellant while at the hospital, when Cst. Falle interrupted the Appellant mid-sentence when the Appellant was on the verge of sharing information relating to the offence without first having received a caution or his rights to counsel.

[79] In my view, the facts of this case fall far closer to those in LaChappelle than they do the facts in S.S., where the officer stayed in the ambulance for the entire ride to the hospital for purely investigatory purposes, without announcing herself, while taking notes of self-incriminating information being provided by an immobilized young person for the purpose of receiving medical care after a serious accident involving a fatality. Here, Cst. Falle remained in the ambulance for no more than sixty seconds—just long enough to ascertain the extent of the Appellant's injuries and see if he might get a chance to speak with him; Cst. Falle made no handwritten notes of what he heard while inside the ambulance; and the Appellant did not incriminate himself during the brief time that Cst. Falle was present.

[80] I see no palpable and overriding errors in the factual findings relied upon by the trial judge when finding that a reasonable expectation of privacy did not arise, and I see no legal error in her analysis.

[81] Finally, even had a breach of section 8 arisen in the circumstances, I fail to see what evidence could legitimately have been excluded as a result, notwithstanding that a strict causal connection is not necessarily required to engage section 24(2). Cst. Falle did not rely on any information provided by the Appellant when forming his grounds to arrest him; the Crown did not seek to tender any information captured during that brief sixty-second window at trial; and the trial judge found that Cst. Falle was protective of the Appellant's Charter rights and motivated solely by the Appellant's physical well-being. Counsel for the Appellant fairly conceded the remoteness of the potential breach in his trial submissions, stating: "in fairness, no evidence that's been relied upon by the Crown or in this investigation was seemingly detected during that short period, so this is not a breach from which any evidence itself is derived, it's just an additional breach in the melee that absolutely, in our submission, elevates the seriousness."

Conclusion

[82] The Appellant has not established any misapprehension of the evidence bearing on the substance of the convictions, nor has he demonstrated that the trial judge erred in law. Her findings were reasonably available to her on the record, and appellate intervention is not warranted.

McVey J.

Released: November 3, 2025