R v Notay, 2021 ABQB 706

Court of Queen’s Bench of Alberta Citation: R v Notay, 2021 ABQB 706 Date: 20210903 Docket: 200224954Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Brahamjot Notay Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice N.J. Whitling Charter / Voluntariness Voir Dire _______________________________________________________ 1.

Introduction [ 1 ] The accused, Brahamjot Notay, stands charged on a nine-count Indictment with four counts of impaired driving causing bodily harm, four counts of driving “over 80” causing bodily harm, and one count of driving while disqualified. All of the charges relate to a motor vehicle collision which occurred on August 25, 2018, at or near Edmonton, Alberta.

[ 2 ] By Application filed March 10, 2021, the accused applies pursuant to ss. 8 , 9 , 10( b ) , 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms for an Order staying this prosecution, or alternatively excluding all of the evidence elicited from the accused after the alleged breaches of his Charter rights, including blood samples, hospital records, and statements. [ 3 ] In addition to his Charter applications, the accused opposes the admission of an oral statement he provided to police on October 15, 2018, on the basis that the Crown has not established beyond a reasonable doubt that that statement was made voluntarily. 2. Factual Overview [ 4 ] The following is a

summary of the factual background applicable generally to the various components of the accused’s Application [ 5 ] In the early morning hours of August 25, 2018, a collision occurred at the intersection of Winterburn Road (being 215 th Street) and Whitemud Drive which involved a white Dodge Journey and a black Lexus RX 350. Scene photographs demonstrate that the front end of the Dodge impacted with the passenger side of the Lexus. To adopt a common expression sometimes used by the trial participants, the black Lexus was “T-boned” by the white Dodge.

The collision occurred roughly in the middle of the intersection. [ 6 ] Although the sky was dark at the time of the collision, the intersection was fairly well illuminated by street lights. There was no rain or fog, and the road was dry. [ 7 ] The intersection of Winterburn Road and Whitemud Drive is controlled by traffic signals. Mark Martinez, who was the driver of the white Dodge, would later testify before me that he was driving northbound on Winterburn Road and had come to a stop at the previous red light where Winterburn Road intersects with the entrance to Costco.

After the light turned green he accelerated towards the intersection with Whitemud Drive. Before his vehicle had reached 60 kilometres per hour, the light at that intersection turned green, and Mr. Martinez proceeded through. At that time his white Dodge collided with the black Lexus, which he believed had run a red light. [ 8 ] At the time of the collision, Mr. Martinez had three passengers in his vehicle, being the three other complainants named in the Indictment. [ 9 ] Mr. Martinez testified that following the collision, he approached a person who he believed to be the driver of the black Lexus.

That other person was apologizing and asking if people were okay. The Crown alleges that that other person was the accused, and that the accused was indeed the driver of the black Lexus. [ 10 ] Following the collision, a number of emergency response vehicles attended at the scene, including fire trucks, ambulances, and police vehicles. There were perhaps a dozen emergency response personnel at the scene of the collision. [ 11 ] The accused received on-the-scene medical treatment from two paramedics, Shanna Reimer and Richard Poulin.

The accused remained in their care while he was transported by ambulance to the University of Alberta hospital. Following standard procedures, Ms. Reimer and Mr. Poulin recorded some of the key events and observations in a Patient Care Record or “PCR” which was included as part of Exhibit 1 on the voir dire before me. [ 12 ] Cst. Randy Taylor of the RCMP came to be the primary investigator of the incident. At 2:59 am, he received a notification from dispatch on his onboard laptop computer respecting the collision. He arrived at the intersection at 3:08 am. Another RCMP officer, Cst.

Bona, as well as fire and ambulance personnel, were already present at the time of Cst. Taylor’s arrival. [ 13 ] The details of Cst. Taylor’s investigation are examined in greater detail throughout these reasons. In brief overview, however, Cst. Taylor spoke briefly to paramedics at the scene and then followed the ambulance transporting the accused to the hospital. He arrived at the hospital at 3:26 am, and advised the accused that he was being investigated for impaired driving, and was being detained on that basis. Cst. Taylor did not advise the accused of his s. 10 (

b) rights at the time of that initial investigative detention. At that time, Cst. Taylor made certain observations of the accused’s condition. Between 4:15 and 4:45 am, while the accused was receiving medical treatment, Cst. Taylor formed grounds for an evidentiary blood demand. At 4:55 am, Cst. Taylor spoke to the accused’s doctor respecting the preconditions for such a demand. Cst. Taylor placed the accused under arrest at 4:58 am, and advised him of his right to counsel at 5:03 am.

He provided the accused with a phone to speak to a lawyer at 5:06 am, and was advised by the accused’s father that the accused was done speaking to a lawyer at 5:10 am. At 5:13 am, the accused was cautioned as to his right to silence, and at 5:15 am, Cst. Taylor read an evidentiary blood demand. Following the accused’s agreement to comply with the demand, a first sample was drawn at 5:35 am, and a second sample was drawn at 5:36 am. [ 14 ] After leaving the hospital that morning, Cst.

Taylor called back to the hospital by telephone, and asked that the blood drawn from the accused for medical purposes be held for 30 days pending an application for a warrant. His request was agreed to, and the hospital retained those blood samples for the RCMP. Approximately three weeks later, on September 18, 2018, Cst. Taylor drafted an Information to Obtain a Search Warrant (“ITO”), and obtained a warrant for the seizure of the hospital blood and a production order for the seizure of the accused’s medical records.

Both the hospital blood and the blood demand blood were subsequently delivered to a laboratory by Cst. Taylor for analysis. [ 15 ] Finally, on October 15, 2018, Cst. Taylor met with the accused at the Enoch RCMP detachment, and took a verbal statement from him. 3. Factual issue regarding Cst. Taylor’s communications with Ms. Reimer

[ 16 ] An important factual issue which is common to several aspects of the accused’s application pertains to the communications which occurred between Cst. Taylor and Ms. Reimer. They are summarized by Cst. Taylor in his ITO of September 18, 2018, as follows: 12. Emergency Medical Services (EMS) Shanna Reimer verbally advised me of the following: a. Reimer was informed by the male subject in her ambulance that he was the driver of one of the motor vehicles. b. Reimer advised me that when she asked the driver if he had consumed any drugs or alcohol, he admitted to consuming alcohol. c.

Reimer informed me that she believed that the male subject was intoxicated by alcohol. [ 17 ] Although neither Ms. Reimer nor Mr. Poulin had a specific recollection of their conversations with the accused, there appears to be no dispute about the fact that they did, for the purpose of providing him with medical treatment, ask him whether or not he had consumed any alcohol or drugs.

Posing such a question is part of their standard practice, and the PCR they prepared contains the following notation: “Pt stated ‘Yes, Ive had about 8 drinks’”; “ETOH Like Smell on Breath; Patient Admits to Alcohol Use”; and “Suspected Intoxication”. What is disputed, however, is whether or not Ms. Reimer actually communicated this information to Cst. Taylor, given its confidential nature. 3.1 Cst Taylor’s Evidence [ 18 ] In his testimony, Cst.

Taylor stated that he was originally advised by dispatch that there was reason to believe that one of the drivers was intoxicated, and that he was to investigate that possibility. [ 19 ] Shortly after his arrival at about 3:08 am, Cst. Taylor had a brief conversation with the ambulance attendants operating the other ambulance at the scene, which was parked by the white Dodge and attending to Mr. Martinez. Those ambulance attendants directed Cst. Taylor to the other ambulance which was parked closer to the black Lexus where the accused was being treated. They also told Cst.

Taylor that the person being treated at that other ambulance was suspected of being an impaired driver. [ 20 ] Cst. Taylor testified that he knocked on the door of the second ambulance, that Ms. Reimer was the attendant closest to him, and that he asked her whether she suspected that the person she was treating had consumed any alcohol. He then said that in response, Ms. Reimer advised him that the accused was the driver of one of the vehicles and that he had consumed alcohol and was possibly intoxicated. [ 21 ] Cst.

Taylor testified further that the ambulance attendants treating the accused were in a hurry, and that they departed for the hospital very shortly after their exchange with Cst. Taylor. The conversation was very brief and lasted a minute or less. Cst. Taylor was wearing his police uniform including a florescent traffic vest but no police hat. There was a total of perhaps 12 to 15 emergency personnel at the scene at the time. Cst. Taylor does not recall verbally identifying himself to Ms. Reimer. Cst. Taylor then followed the ambulance to the hospital in his own police vehicle. [ 22 ] Cst.

Taylor relied upon his notes to refresh his memory. Those notes are not in evidence, but he testified that they include an entry which indicates that Ms. Reimer told him that the accused was intoxicated. This entry is apparently accompanied by a time stamp of 3:08 am. [ 23 ] Cst. Taylor testified that later in the hospital, while the accused was receiving medical treatment and the circumstances had calmed, he had another conversation of about 10 minutes with Ms. Reimer in the presence of Mr. Poulin.

He stated that during that conversation, she confirmed to him that she had asked the accused about drugs and alcohol and that the accused had said that he had been drinking, and that she thought he was intoxicated. 3.2 Ms. Reimer’s Evidence [ 24 ] Ms. Reimer had a general memory of the incident where she and Mr. Poulin attended at the scene of a collision and provided medical assistance to the accused. They also had a student with them who was observing and assisting them. In order to recall the details of the incident, it was necessary for Ms. Reimer to refer to the contents of the PCR that she and Mr.

Poulin prepared. [ 25 ] The PCR indicates, and Ms. Reimer confirmed, that they arrived at the scene of the collision at 3:03 am and departed for the hospital at 3:12 am. [ 26 ] Ms. Reimer confirmed that it would have been her routine practice to inquire with the accused as to whether or not there were any drugs or alcohol “on board”, meaning in his body, since that consideration might affect the medical treatment that they would provide. From reviewing the PCR, she confirmed that the accused had admitted to having had 8 alcoholic drinks. [ 27 ] Ms.

Reimer has no specific recollection of dealing with any police officers, including the RCMP, that evening. She said that they might have advised other emergency personnel, such as the fire department, when they were about to leave, but she does not know whether she saw or interacted with any police officers. She also does not know whether Mr. Poulin interacted with any police officers. Understandably, they were both focused on their patient at the time. Ms. Reimer also does not recall speaking to a police officer at the hospital. [ 28 ] Ms.

Reimer stated that it was possible that the information in the PCR respecting the accused’s alcohol consumption could have come from the personnel in the other ambulance unit, but she did not believe so. The other unit had arrived first, triaged the accused, and told Ms. Reimer that the accused needed an assessment. [ 29 ] During cross-examination, Ms. Reimer indicated that the information she had received from the accused respecting alcohol consumption is the sort of private information which she would not lightly share with other people. She confirmed that her training is not

to convey information of this nature to the police, unless perhaps there was a “subpoena”, but she was unsure as to the nature of that legalprocess. [30] In re-examination, when asked specifically whether or not she might tell a police officer that alcohol might have been a factorin a serious collision, Ms. Reimer indicated that she has not told police officers that. She explained that she would not do so because,firstly, such information is confidential, and secondly, only bloodwork can confirm or deny whether or not a person was intoxicated byalcohol. [31] In re-cross-examination, Ms.

Reimer stated that although she did not recall any conversations with police officers, she wouldnot have told a police officer that she believed that the accused was intoxicated. [32] Throughout her testimony, Ms. Reimer allowed for the possibility that Cst. Taylor could have been at hand when she askedthe accused about the consumption of alcohol or drugs, and that the accused’s answer could have been overheard. 3.3 Mr. Poulin’s Evidence [33] The Crown also called Mr. Poulin as a witness. Mr.

Poulin stated that he had attended at many collision scenes where alcoholmay have been involved, and where police were present and investigating. When asked whether he has ever assisted the police by tellingthem that a person might be intoxicated, Mr. Poulin stated that no, that was not a practice he partakes in. Sometimes, if the police are notin the vicinity, he may ask a patient about alcohol consumption and tell them that its safe to answer since the police are not here, but hewill not do that if the police might overhear. [34] Mr.

Poulin also stated that he will often record observations such as a smell of ETOH or an admission of alcoholconsumption, but will not say that a patient is intoxicated since that subject matter is beyond his expertise, and since he cannot analyzeblood. [35] In cross-examination, Mr.

Poulin stated that he does not recall ever having had a discussion about intoxication or alcoholconsumption in the presence of any police officers, and that such information is not something that he would intentionally communicateto police officers since that is private information. 3.4 Burden of Proof [36] As mentioned above, the dispute between the parties respecting the information said to have been acquired by Cst. Taylorfrom Ms. Reimer impacts upon several aspects of the accused’s Charter application.

These include a s. 9 challenge to the accused’sarrest at the hospital, a s.8 challenge to the warrantless seizure of his blood pursuant to the blood demand, and a s. 8 challenge to theseizure of the hospital blood and hospital records pursuant to a warrant. This raises a somewhat complicated issue respecting the onus ofproof. Although it has been said that it will be a rare case where a factual issue will turn upon the onus of proof, the present case ispotentially one of those cases. [37] An analysis of this issue must commence with the recitation of a few basic and uncontroversial principles.

Where the accusedbrings a Charter application, the onus is upon the accused to establish a violation of his Charter rights on a balance of probabilities (R vCollins, (SCC), [1987] 1 SCR 265 at p. 277). Where the Charter application challenges the validity of a search warrant,the warrant is presumed to be valid, and the onus is upon the accused to demonstrate that it was not validly issued.

In contrast, the onusis upon the Crown to prove that a warrantless search was reasonable. [38] There would appear to be little doubt that the Crown bears the onus of establishing that the warrantless seizure of theaccused’s blood pursuant to the blood demand was reasonable.

This much is apparent from the decision of the Supreme Court of Canadain R v Shepherd, 2009 SCC 35 at paras. 15-16, where the Court addressed a warrantless seizure of an accused’s breath pursuant to thethen-applicable version of s. 254(3) of the Criminal Code in the following terms: The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks torely on breath samples obtained as a result of a warrantless search.

It would also be impractical to place the burden on the accusedbecause evidence of the presence or absence of reasonable and probable grounds is within the "peculiar knowledge" of the Crown (R. v.Bartle, (SCC), [1994] 3 S.C.R. 173, p. 210) [39] In the passage from Bartle cited in the above passage, Lamer C.J. noted that the onus on any particular Charter applicationmay shift back and forth between the accused and the Crown regardless of the initial or ultimate onus of proof.

Such a shift may occur“depending on what the particular contested issue is, which party is seeking to rely on it and, of course, the nature of the Charter rightwhich has been violated”.

Furthermore, “the true burden is in practice bound to drift towards the Crown, since many factors in theequation are within the peculiar knowledge of the Crown”. [40] In the specific context of s. 9 challenges, the onus is upon the applicant to establish the occurrence of an arrest or detention.That is, “the onus is upon the applicant to establish that he or she was effectively deprived of his or her liberty of choice” (R v Suberu,2009 SCC 33 at para. 28).

Cases from the civil context hold that once a plaintiff has established that he or she was arrested or detained bythe defendants, the onus shifts to the defendants to provide the justification for their actions (Frazier v Purdy (1991), (ON SC), 6 OR (3d) 429 (Gen. Div.) at p. 435). A similar approach applies in the analogous context of a Charter application whichchallenges an application of force by a police officer on the basis of s. 7. In that context, the onus is upon the accused to prove that forcewas applied, and the onus then shifts to the Crown to justify the application of force.

This shift occurs since “it would be unfair to imposeon an accused the burden of proving a negative, namely that the deadly force was not justified” (R v Davis, 2014 SCC 4, aff’g 2013ABCA 15, Fraser C.J.A. (dissenting) at paras. 78-79). [41] Regarding sub-facial challenges to search warrants, warrants are presumptively valid, and the party challenging the validity of

a warrant bears the onus of demonstrating it was not validly issued. In the context of that inquiry, a reviewing court is required to excise“erroneous information” from consideration (R v Araujo, 2000 SCC 65, at paras. 56-58). At least one court has held that “the onus toestablish the erroneous quality of the information rests on the defence on the balance of probabilities” (R v Nguyen, 2016 ONCJ 660, atpara. 46). [42] Potential difficulties arise where, as here, the same factual issues are material to multiple Charter applications which may besubject to different onuses of proof.

The most recent appellate decision to address this situation appears to be R v Gerson-Foster, 2019ONCA 405, where the accused challenged both his arrest as being contrary to s. 9 and a warrantless search conducted incident to hisarrest as being contrary to s. 8. In this context, Paciocco J.A. appeared to hold that the onus would normally have been on the accused toestablish that his arrest was unlawful, but that the presence of the s. 8 challenge to a warrantless search shifted that onus of proof to theCrown: 75 In order to defeat Mr. Gerson-Foster's s. 9 claim, the Crown has to prove that Mr.

Gerson-Foster's arrest was lawful. Ordinarily itwould have been Mr. Gerson-Foster's burden, as the Charter claimant, to prove his arrest to have been unlawful, but Mr. Gerson-Fosterhas also brought an s. 8 claim against the warrantless searches that were conducted. Warrantless searches are presumptivelyunreasonable, and where, as here, the Crown seeks to rebut that presumption by claiming a search was lawfully conducted incident to anarrest, the Crown must show that the arrest was lawful: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 87.

In order to avoidinconsistent outcomes on the same issue because of conflicting burdens, where the arrest the Crown is relying upon to justify the searchincident to arrest is subject to an s. 9 challenge, the Crown will carry the burden on both of the overlapping ss. 8 and 9 claims and mustprove that the arrest was legal: R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 82-83; R. v. Brown (1996), (ON CA), 47 C.R. (4th) 134 (Ont. C.A.); R. v.

Besharah, 2010 SKCA 2, 251 C.C.C. (3d) 516, at paras. 32-35. [43] Having considered the above authorities, and in the particular circumstances of this case, I find that the onus of proofrespecting the information said to have been conveyed by Ms. Reimer to Cst. Taylor lies on the Crown. This onus will be applied even inthe context of the accused’s challenge to the seizures effected pursuant to the warrant and production order.

Given that the accused wasarrested, that his blood was seized pursuant to a warrantless seizure, and that his blood and hospital records were seized pursuant to awarrant, the onus shifts to the Crown to establish the existence of the grounds relied upon for these actions. This shift is necessary both toensure fairness to the accused (Shepherd, Davis) and to avoid inconsistent outcomes on the same issue because of conflicting burdens(Gerson-Foster). 3.5 Analysis and Conclusions [44] I turn now to an assessment of the evidence respecting the exchange said by Cst. Taylor to have occurred between himself andMs.

Reimer. In particular, this exchange is said to have imparted information respecting the accused’s admission to Ms. Reimer that hehad consumed alcohol, as well as an opinion by Ms. Reimer that the accused was intoxicated. These conversations were said to haveoccurred both at the scene of the collision and at the hospital where Mr. Poulin was also present. [45] Regarding the issue of credibility, I do not have any significant concerns with respect to the sincerity of any of the threewitnesses who testified about this issue. Neither side disputes the sincerity of either Ms. Reimer or Mr. Poulin.

What is in question is thereliability of their memories, or their lack of memories respecting the particular conversation in question. [46] With regard to Cst. Taylor, and despite the able arguments of the accused’s counsel, I do not believe that he was cavalier withthe truth or evasive in his answers during his testimony before me. Although he had little experience in impaired driving investigationswhere blood seizures were involved (this being his first such case), he did appear to be doing his best to recollect the events at issue, heremained consistent in his answers, and he was not overly evasive.

Although there was at least one instance where Cst. Taylor’s notescontained an entry which anticipated an event which did not actually occur, he otherwise appeared to have kept good notes of the eventsin question, and few if any material inconsistencies in his notes were identified in cross-examination. I note that with respect to theparticular point now at issue, his cross-examination was brief. [47] I find it significant that, according to Cst. Taylor, the information in paragraph 12 of the ITO was conveyed to him by Ms.Reimer, but that his exchanges with her occurred at locations where Mr.

Poulin was present, being a crowded ambulance and thehospital. The testimonies of Ms. Reimer and Mr. Poulin were consistent vis-à-vis one another. Both testified that it is not their practice todisclose such information to police officers, and that in fact it is something that they would not do. Neither of them had any recollectionof such an exchange. [48] In particular, Ms. Reimer and Mr.

Poulin testified that they would not disclose any opinion to a police officer that a patientwas intoxicated, both because of confidentiality and because intoxication can only be determined on the basis of blood analysis, which isnot their area of expertise. In contrast, Cst. Taylor testified that Ms. Reimer told him not only that the accused had admitted to alcoholconsumption, but that he was intoxicated by alcohol. [49] Ms. Reimer agreed on re-cross-examination that an opinion respecting a patient’s state of intoxication was not informationthat she would convey or share with a police officer. With respect to Mr.

Poulin, he was asked if he had ever assisted the police by tellingthem what he had done or seen with regards to a patient being intoxicated, and he said “No”, that is not a practice he partakes in. [50] Ms. Reimer and Mr. Poulin are professionals, and they testified that it is their practice to protect the confidential medicalinformation imparted to them by their patients. Both of them indicated that they do not disclose information respecting impairment tothird parties such as police officers. I note at this point that s. 40.1(2)(

c) of the Emergency Health Services Act, RSA 2000, c. E-6.6actually permits, but does not require, an “ambulance attendant” to disclose “any observation of possible impairment” to a peaceofficer.[1] But that legal fact was not put to these ambulance attendants during their testimonies and they did not appear to be aware of it.For her own part, Ms. Reimer testified that it was her understanding that she could potentially be compelled to disclose such informationby way of a “subpoena”, but she was unclear as to the legalities surrounding that process.

In any event, whatever their legal authority todisclose such confidential information might have been, it was not the practice of either Ms. Reimer or Mr. Poulin to exercise it.

[ 51 ] It is true that Ms. Reimer and Mr. Poulin did not have any specific memory of their interactions with Cst. Taylor, but I do not find that this circumstance reduces the significance or reliability of their testimonies. If one assumes that these ambulance attendants did not take the unusual step of disclosing their patient’s confidential information to a police officer, then one would not expect them to recall their interactions with Cst. Taylor as anything out of the ordinary. [ 52 ] I have considered the possibility that Cst. Taylor could have overheard Ms.

Reimer’s exchanges with the accused respecting his consumption of alcohol. She indicated that it was possible that a third party such as Cst. Taylor could have been at hand when these exchanges occurred, and overheard them. But Cst. Taylor has not suggested that he acquired the information in that manner. Rather, he indicates that Ms. Reimer “verbally advised me” of the information. Further, I am not aware of any exchange between the accused and Ms.

Reimer in which the accused acknowledged that he was “intoxicated”. [ 53 ] I have also considered the possibility, as argued by Crown counsel, that in all the confusion, and given that Cst. Taylor was wearing a florescent traffic vest and no police hat, Ms. Reimer could have mistaken him for another ambulance attendant, a member of the fire department, or some other emergency responder. I do not accept that as a reasonable possibility. It is almost purely speculative, and I find it unlikely that Ms.

Reimer would have disclosed her patient’s confidential information to a third party she did not know without first determining who that third party was. [ 54 ] In conclusion, I find that the Crown has not proven, on a balance of probabilities, that Ms. Reimer verbally advised Cst. Taylor of the information contained in paragraph 12 of his ITO of September 18, 2018. Two of the Crown’s three witnesses respecting those communications effectively deny that they occurred. Those two witnesses are both credible, professional persons who were both said to have been at hand at the time.

Given the nature of their practices and policies as medical professionals, I find it highly unlikely that both of them would have forgotten communications of their patient’s confidential medical information to a police officer. 3.6 The nature of Cst. Taylor’s error [ 55 ] Given my finding that the communications between Cst. Taylor and Ms. Reimer summarized at paragraph 12 of the ITO have not been proven, and given that s. 24(2) of the Charter may be at issue in this application, it is necessary for me to address the question of whether Cst.

Taylor has been deliberately dishonest with the Court or whether he is merely mistaken. [ 56 ] I do not find that Cst. Taylor has acted in a deliberately dishonest manner. I find it more likely that he is mistaken. Looking back through his notes and the confusion of that evening, it is more likely than not that Cst. Taylor misremembered the nature of the information he received and from whom. One potential explanation, which was candidly advanced by Crown counsel in the absence of Cst. Taylor as a possibility, is that the applicable entry in Cst.

Taylor’s notes may actually reflect information that he received during his brief exchange at the other ambulance near the white Dodge. The attendants of that other ambulance were assisting Mr. Martinez, who was emotional and angry with the accused at the time. Whether the mistake occurred in this manner or some other, I conclude that some manner of mistake is the most likely explanation for Cst. Taylor’s version of events. 4. The s. 9 Challenge to the Arrest [ 57 ] Although listed as Ground 3 in the accused’s Application, I will deal first with the accused’s application pursuant to s. 9 of the Charter .

This aspect of the application focuses upon the accused’s arrest by Cst. Taylor at the hospital at 4:58 am. The accused argues that since Cst. Taylor did not have “reasonable and probable grounds” to arrest the accused, the arrest was arbitrary and contrary to s. 9. 4.1

Summary of facts relating to the accused’s arrest [ 58 ] I will now summarize the facts pertaining to the accused’s arrest, which is the subject of his challenge pursuant to s. 9 of the Charter . [ 59 ] The accused was arrested by Cst. Taylor at 4:58 am. The accused was on a hospital bed in a curtained area at the time. He had just received medical treatment, and at least three of his family members, his mother, his father, and his sister, were present. [ 60 ] Cst.

Taylor testified that between 4:15 am and 4:45 am he formed the opinion that the accused had been in care and control of one of the vehicles involved in the collision, and that his ability to operate a motor vehicle may have been impaired by alcohol at the time. He also identified and described the specific grounds that he relied upon in forming that opinion. Substantially the same grounds were also summarized in his ITO of September 18, 2018. [ 61 ] In my view, the most significant information identified by Cst.

Taylor in his testimony and in his ITO in regards to impairment was the information said to have been communicated to him by Ms. Reimer. [ 62 ] The other indicia of impairment relied upon by Cst. Taylor in the ITO consists of the initial advice he received from dispatch to the effect that one of the drivers in the collision was believed to be impaired by alcohol, together with the following: 18.

I continued to make the following observations from Notay [at the hospital]: - Notay had a strong odor of alcohol / liquor stemming from his breath. - Notay had red glassy eyes. - Notay appeared groggy and had slow responses when questioned.

- Notay had difficulties spelling his name and repeatedly lost focus, often being prompted to continue. - Notay’s cognitive function appeared to be slow in processing information and responding to questions. [ 63 ] Notably absent from the circumstances relied upon by Cst.

Taylor is any information respecting the manner in which the accused had been driving, or any other information respecting the nature or cause of the collision. [ 64 ] This point requires a brief explanation of the division of responsibility amongst the police agencies to participated in the investigation of this incident. [ 65 ] The intersection of Winterburn Road and Whitemud Drive is near the western edge of the City of Edmonton.

Both the RCMP and the EPS responded to the collision, and it seems that there was some initial confusion as between the two agencies as to which agency would be primarily responsible for the investigation. Cst. Taylor’s initial view was that the EPS was primarily responsible, and that his role was simply to preserve evidence for the benefit of the EPS. Later, at the hospital, he was advised by an EPS member that Cst. Taylor and the RCMP would be responsible for the investigation. To adopt a term used at the trial, Cst. Taylor was “voluntold” that this was his investigation. [ 66 ] After Cst.

Taylor left for the hospital, RCMP Cst. Bona remained behind at the scene to further the investigation by, among other things, taking scene photographs. Later, Cst. Brett Ryan of the EPS attended the scene, and later that day Cst. Ryan took witness statements, including one from Mr. Martinez. [ 67 ] By 4:58 am, being approximately two hours after the collision, it seems that Cst. Taylor was not in possession of any information respecting the cause or other details of the collision. This despite the fact that Mr. Martinez had at least had brief contact with Cst. Bona.

Whether because the information had somehow not been gathered, or whether it had been gathered by the EPS and not shared with the RCMP, no such information was in the possession of Cst. Taylor. [ 68 ] In fact, even three weeks later, on September 18, 2018, when Cst. Taylor prepared the ITO, he had not received or acquired an August 25, 2018, report respecting Mr. Martinez’s version of what caused the collision gathered by Cst. Ryan. No further information respecting the circumstances of the collision was mentioned in the ITO. [ 69 ] In his testimony, Cst.

Taylor acknowledged that at the time of the arrest, he did not have any driving pattern information, or other information respecting how the collision had happened. He had not interviewed Mr. Martinez or any other persons involved in the collision himself, and he was not in possession of any witness information collected by other police officers [ 70 ] Other information that was available to Cst. Taylor at the time of the arrest and at the time he swore his ITO included the dry road conditions and clear visibility. [ 71 ] At the time of the arrest and the preparation of the ITO, Cst.

Taylor also considered and relied upon the accused’s medical condition. He had been advised that the accused had experienced a head trauma, and he recalls observing a bruise or contusion somewhere on the accused’s face. He was also aware that the accused had sustained a chest injury in the collision, and that he had not been wearing a seatbelt. He knew, and stated in the ITO, that the accused’s chest injury would have affected his breathing, particularly since the accused had asthma. Cst.

Taylor relied upon these circumstances in support of his conclusion that it was impractical to acquire a breath sample, as opposed to a blood sample, from the accused. [ 72 ] A significant amount of Cst. Taylor’s cross-examination focused upon his potential knowledge as to the medications that had been administered to the accused, both at the ambulance and at the hospital. In particular, the ambulance PCR states that the accused was given “100 mcg of fent”, meaning 100 micrograms of fentanyl, for his left leg pain.

It also states that the accused was “Alert to Person; Alert to Place; Alert to Time; Alert to Situation”. The accused’s medical records, being Exhibit 1 on the voir dire , also suggest that he was given fentanyl for pain while at the hospital, though no witness testified to explain or interpret these records. [ 73 ] In response to these questions, Cst. Taylor testified that he was not aware of any pain medication that had been provided to the accused, and that he does not recall making any inquiries on that subject.

He did maintain that it is possible that he made inquiries on that subject, but he no longer remembers doing so. [ 74 ] I do not find that Cst. Taylor was specifically aware that fentanyl had been administered to the accused, and I do not find that he ought to have made specific inquiries on that subject. However, given the nature of the collision and the accused’s injuries, I conclude that a reasonable person would know that narcotic painkillers are often administered by medical professionals in such circumstances. 4.2

Summary of legal principles respecting s. 9 [ 75 ]

Section 9 of the Charter reads: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 76 ] The first question to be determined on any s. 9 application is whether the accused was detained or imprisoned. The onus is upon the accused to establish such a constraint upon his liberty ( Suberu at para. 28 ). In the present case, Cst. Taylor stated, and the parties accept, that the accused was arrested at 4:58 am. That satisfies the initial requirement of s. 9. [ 77 ] The more controversial issue is whether or not the accused was detained “arbitrarily” for the purposes of s. 9.

In R v Grant , 2009 SCC 32 at para. 54 , the Supreme Court of Canada held that this requirement turns upon whether or not the detention was authorized by law: The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person’s liberty is not to

be curtailed except in accordance with the principles of fundamental justice. As this Court has stated: This guarantee expresses one ofthe most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law” (Charkaoui v.Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88).

Section 9 serves to protect individual libertyagainst unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the lawauthorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. [Emphasis added] [78] Cst. Taylor’s legal authority to arrest the accused, if any, was derived from s. 495(1)(

a) of the Criminal Code: 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commitan indictable offence; [79] In Hicks v Faulkner (1878), 8 QBD 167 (Div Ct) at p. 171, aff’d (1882), 46 LT 130 (CA), Hawkins J. provided the followingdescription of the standard “reasonable and probable cause”, being substantially the same requirement as the “reasonable grounds”requirement of s. 495(1)(a): Now I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction,founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead anyordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guiltyof the crime imputed. [80] The above definition was adopted by Lamer J. (as he then was) in Nelles v Ontario, (SCC), [1989] 2 SCR170 at para. 43. [81] In the century-and-a-half since Hicks, the courts have intentionally declined to add much greater definition to the “reasonablegrounds” standard.

As LaForest J., dissenting, wrote in R v Landry, (SCC), [1986] 1 SCR 145 at p. 180, reasonablegrounds “comprises more than mere surmise, but determining with any useful measure of precision what it means beyond that posesrather intractable problems both for the police and the courts.” And as Rehnquist J. (as he then was) wrote in Illinois v Gates, 462 US213 (1983) at p. 232, “probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules.” In Criminal Procedure in Canada, 2nd ed. (LexisNexis Canada Inc.,2018), at p. 230, Penney, Rondinelli and Stribopoulos quote these authorities and comment upon the resulting lack of legal of legalguidance from the courts as follows: 2.165 This is not intended as a criticism.

To the contrary, although an enumeration of relevant factors on some generalized level ofabstraction is possible, there is an undoubted cost for the certainty that such an approach might purchase; namely denying the police theflexibility they need to respond to the myriad factual situations they confront in the field... [82] Notwithstanding the need for flexibility, the following guidance does emerge from the applicable case law. [83] The words “reasonable grounds” in s. 495(1)(

a) create the same standard as the words “reasonable and probable grounds” (R vLoewen, 2011 SCC 21 at para. 5). The phrases “reasonable probability” and “reasonable belief” also approximate the same standard (R vDebot, (SCC), [1989] 2 SCR 1140 at p. 1166). Similarly, the English common law standard of “strong reason tobelieve”, the American standard of “probable cause” and the Canadian standard of “reasonable ground to believe” are “identical”(Hunter v Southam, (SCC), [1984] 2 SCR 145 at p. 167).

In contrast, it is an error to equate the reasonable groundsstandard with the higher standard of a “balance of probabilities”, “more probable than not” or a “50% statistical probability” (Mugesera vCanada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114; R v Loewen, 2010 ABCA 255 at para. 28, aff’d 2011SCC 21; Allen v Alberta (Law Enforcement Review Board), 2013 ABCA 187 at paras. 24-30).

Reasonable grounds is less than proofbeyond a reasonable doubt or a prima facie case (R v Storrey, (SCC), [1990] 1 SCR 241 at pp. 250-251), but more thanreasonable suspicion (R v Chehil, 2013 SCC 49 at para. 27). It arises at the point where “credibility-based probability replaces suspicion”(Hunter v Southam, [1984] 2 SCR 145 at p. 167). [84] The reasonable grounds standard in s. 495(1)(

a) has both subjective and objective components. An arresting officer mustsubjectively have reasonable grounds on which to base the arrest, and those grounds must be justifiable from an objective point of view(Storrey at pp. 250-251). When assessing the objective requirement, the reasonable person is “in the shoes” of the police officer, and cantake into account the officer's training and experience (R v Phung, 2013 ABCA 63 at para. 10).

The standard may be somewhat relaxedwhen applied to a police officer as opposed to a judicial officer since “[j]udicial reflection is not something that an officer can afford” (R.v. Golub (1997), (ON CA), 34 OR (3d) 743 (CA) at p. 750; Loewen at para. 16 ABCA). [85] In forming reasonable grounds, an arresting officer may rely upon hearsay or incomplete sources provided that it is reasonableto do so. The important issue is not whether the officer’s belief was accurate but whether it was reasonable.

Consequently, the fact thatsome of the information relied upon is later proven to have been false is, in and of itself, immaterial to the inquiry (R v Musurichan(1990), 1990 ABCA 170 , 56 CCC (3d) 570 (Alta CA) at p. 574). [86] In reviewing the factors relied upon by an arresting officer, it is an error to test individual pieces of evidence in isolation.

Thequestion is whether the total of the evidence relied upon provided reasonable grounds on an objective standard (R v Huddle, 1989 ABCA318). [87] Several of the applicable case authorities, such as Golub at p. 750, state that the reasonable grounds standard must be assessedin light of not only the information actually considered by the arresting officer, but also that information “available to them” at the timeof the arrest.

It has also been stated that the police are expected to make such reasonable inquiries as the circumstances require (Storreyat p. 250 quoting Dumbell v Roberts, [1944] 1 All ER 326 (CA) at p. 329). To be clear, these authorities do not hold that the Crown maysubsequently justify an arrest by relying upon incriminating information that was not actually considered by the officer at the time of thearrest. As McFadyen J.A. stated in R v McClelland, 1995 ABCA 199 at paras. 20-21: “Evidence which arose or came to light subsequent

to the formation of the belief is not relevant in determining whether the police officer had reasonable and probable grounds for his belief at the time he formed the belief”. What these authorities do hold is that an arresting officer may not focus only upon incriminating information while ignoring exculpatory information.

An arresting officer must take into account all information available to him or her, and may only disregard that information which is unreliable ( Chartier v Quebec (Attorney General) , [1979] 2 S.C.R. 475 at p. 499) . [ 88 ] Counsel in the present case have each produced and relied upon case authorities applying the reasonable grounds standard in the particular context of impaired driving. [ 89 ] The Crown relies upon R v Rhyason , 2007 SCC 39 .

In that case, the Supreme Court of Canada upheld a determination by the trial judge that the information relied upon by the investigating officer in making a breath demand and arrest met the reasonable grounds standard. In the context of a mid-trial trial application before me pursuant to R v Pires; R v Lising , 2005 SCC 66 , Crown counsel submitted that Rhyason controls the outcome in the present case, since the information relied upon by Cst. Taylor is necessarily sufficient, even without the advice said to have been received from Ms.

Reimer. [ 90 ] With respect, and as previously held by me in the context of the Pires and Lising application, I do not agree that Rhyason controls the outcome of the s. 9 inquiry now before me. The majority of the Supreme Court of Canada in that case did not uphold the trial judge’s decision merely on the basis that there had been an accident or an unexplained accident, together with evidence of alcohol consumption.

Rather, the majority affirmed a fact-based decision which relied upon the officer’s testimony respecting “ the circumstances of the accident” (para. 15) which included “deceased pedestrian at accident site” (para. 5) (a cross-walk), together with evidence of alcohol consumption.

The same result would not necessarily have ensued if, for example, the officer had little or no information regarding the circumstances of the accident beyond its occurrence. [ 91 ] Defence counsel relies upon R v Berube , 2015 ABQB 572 , in which Shelley J. addressed a s. 8 challenge to a seizure of hospital records and hospital blood pursuant to a warrant following a motor vehicle collision involving the accused. The officer’s warrant application included evidence consistent with alcohol consumption, but little or no evidence respecting the circumstances of the accident or a driving pattern by the accused.

In applying the reasonable suspicion standard as opposed to the reasonable grounds standard under the old s. 487.012(3) ( R v Fedossenko , 2014 ABCA 314 ), Shelley J. concluded that there existed a reasonable suspicion that the accused had alcohol in his body, but no reasonable suspicion that his ability to drive had been impaired by alcohol. She then proceeded to exclude the evidence gathered pursuant to the warrant. [ 92 ] Although every case must turn upon its own facts, I agree with defence counsel that the circumstances of Berube are broadly similar to the circumstances of the present case.

In both cases, the police conduct at issue was supported by some evidence of alcohol consumption, but unsupported by evidence respecting the circumstances of the accident, or the accused’s driving pattern. 4.3 Application of legal principles [ 93 ] Applying the reasonable grounds standard to Cst. Taylor’s arrest of the accused at 4:58 am, I find that that standard was not met. Although Cst. Taylor may have subjectively believed that he had reasonable grounds to arrest the accused, the information available to him and relied upon by him does not objectively satisfy the standard.

Consequently, the arrest was not authorized by s. 495(1) (

a) of the Criminal Code , and was unlawful. This being the case, the arrest constituted an arbitrary detention contrary to s. 9 of the Charter . [ 94 ] After excising the advice said by Cst. Taylor to have been received from Ms. Reimer, the remaining information he relied upon does not give rise to reasonable grounds to believe that the accused had care and control of a motor vehicle while his ability to drive was impaired by alcohol. Cst.

Taylor’s observations of the accused at the hospital while immobilized on a gurney, such as the smell of alcohol, bloodshot eyes, slurred speech, muttering, and apparent lack of focus, were at best indications that the accused had alcohol in his body. I say at best, because some of these circumstances were equally consistent with the head trauma and chest injury also considered by Cst. Taylor, combined with the effects of whatever medications might have been administered to the accused at the time. [ 95 ] Cst. Taylor was not in possession of any information respecting any driving pattern by the accused.

Although Cst. Taylor was aware of some of the basic features of the collision, such as the dry roads, the clear visibility, and the fact that the white Dodge had struck the side of the black Lexus, these circumstances do not themselves suggest that the accused’s ability to operate a motor vehicle was impaired by alcohol. Further, and in any event, Cst. Taylor did not place significant reliance upon those factors in making his decision to arrest the accused. [ 96 ] The reasonable grounds standard requires police officers to conduct investigations with reasonable diligence, and to make reasonable inquiries.

Despite this, Cst. Taylor did not gather or consider any information respecting the circumstances of the collision, such as that which was readily available from Mr. Martinez and the other occupants of the white Dodge. He could have communicated with Cst. Bona or Cst. Ryan on this subject, but he did not. That information, combined with that which Cst. Taylor actually did consider, might well have satisfied the reasonable grounds standard. 4.4 Conclusion on s. 9 challenge to arrest [ 97 ] In conclusion, I find that when Cst.

Taylor arrested the accused at the hospital at 4:58 am, he did not have reasonable grounds to believe that the accused had committed the offence of having care and control of a motor vehicle while his ability to drive was impaired by alcohol. Therefore, the arrest constituted a violation of s. 9 of the Charter . 5. The s. 8 Challenge to the Seizure of his Blood Pursuant to the Demand

[98] I turn next to the accused’s challenge to the two seizures of his blood at 5:35 am and 5:36 am pursuant to the statutory demandmade by Cst. Taylor at 5:15 am. Among other things, the accused’s Application pleads that Cst.

Taylor did not have “reasonable andprobable grounds” to make a blood demand since he did not have an objectively reasonable basis to infer that the accused’s ability tooperate a motor vehicle was impaired by alcohol. 5.1 Legal principles [99] The Supreme Court of Canada has held on many occasions that a search or seizure will be reasonable within the meaning of s.8 where (1) it is authorized by law; (2) the law itself is reasonable; and (3) the search is conducted in a reasonable manner (R v Collins, (SCC), [1987] 1 S.C.R. 265; R v Golden, 2001 SCC 83 at para. 44).

The primary issue on the present application is thefirst requirement. The blood demand at issue was made pursuant to the since-repealed s. 253(3)(a)(ii) of the Criminal Code, which readas follows: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, [...] (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. [100] Given the highly intrusive nature of taking a blood sample, the state must comply strictly with the conditions set forth in theCriminal Code before such a substantial interference is authorized and justified (R v Caruth, 2009 ABCA 342 at para. 18, citing R vPavel (1989), (ON CA), 53 CCC 3d 296 (Ont CA)). [101] The aspect of s. 254(3)(a)(ii) at issue in the present case is the initial requirement that the peace officer, Cst. Taylor, have“reasonable grounds to believe” that the accused had committed a s. 253 offence.

These words adopt the same standard as the words “onreasonable grounds, he believes” in s. 495(1)(a), previously addressed in the context of the accused’s s. 9 challenge. In R v McClelland,1995 ABCA 199, the Court of Appeal was considering an earlier, but similarly worded version of s. 254(3), and described the applicabletest as follows: 21 It is clear from these cases, that the question of the existence of reasonable and probable grounds must be based on facts knownby or available to the police officer at the time he formed the requisite belief.

I accept that the police officer's understanding of the factsmust be a reasonable one. To paraphrase the statements in the cases cited, does the totality of the evidence available to the police officerat the time he formed the belief support an objective finding that he had reasonable and probable grounds to believe that the ability of thedriver was impaired by alcohol?

It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise indetermining whether the officer's belief was reasonable. 22 Evidence which arose or came to light subsequent to the formation of the belief is not relevant in determining whether the policeofficer had reasonable and probable grounds for his belief at the time he formed the belief... 5.2 Application and Conclusion [102] As just noted, the reasonable grounds standard contained in s. 495(1)(

a) of the Criminal Code is substantially the same standardas that contained in the version of s. 254(3)(a)(ii) of the Criminal Code that was in force on August 25, 2018. Unsurprisingly therefore, Ireach the same conclusion in the accused’s s. 8 application as I have reached in his s. 9 application. [103] I find that when Cst.

Taylor made the blood demand at 5:15 am, he did not have reasonable grounds to believe that the accusedhad committed the offence of having care and control of a motor vehicle while his ability to drive was impaired by alcohol.Consequently, the demand was not authorized by s. 254(3)(a)(ii), and was an unreasonable seizure for the purposes of s. 8.

I thereforeconclude that the drawing of the accused’s blood at 5:35 am and 5:36 am, together with the subsequent seizure of those samples,constituted seizures of bodily samples which was not authorized by law, and which violated the accused’s rights under s. 8 of theCharter. 6. The s. 10(

b) Challenge – “Non-Routine Procedure” [104] I turn now to s. 10(

b) of the Charter. The accused pleads that Cst. Taylor breached his s. 10(

b) rights by failing to make theblood demand until after the accused’s apparent call with legal counsel. He argues that since a blood demand is an unusual or exceptionalinvestigative procedure, he was not able to seek advice from legal counsel respecting that particular procedure. 6.1 Legal Principles [105] In R v Sinclair, 2010 SCC 35, McLachlin C.J. and Charron J. wrote as follows:

1. New Procedures Involving the Detainee 50 The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routineprocedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advisinglawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(

b) of providing the detainee with theinformation necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counselis necessary: R. v. Ross, (SCC), [1989] 1 S.C.R. 3. [106] Prior to Sinclair, the Court of Appeal had held that a s. 10(

b) caution within the roadside screening and A.L.E.R.T. processsufficed for a breathalyzer demand several minutes later: R v Purdon (1989), 1989 ABCA 297 , 52 CCC (3d) 270 (Alta CA); Rv Nichol, 1987 ABCA 139 , 53 Alta LR (2d) 188 (CA). The Court had also held that a s. 10(

b) warning at the time of arrest wassufficient for the purposes of a breath demand made several minutes later: R v Johnson (1990), 1990 ABCA 121 , 108 AR 108(CA). [107] Several decisions decided after Sinclair have applied its principles to the various investigative techniques involved in theinvestigation of impaired driving offences. [108] In R v Wilkinson, 2014 ONCJ 515, the accused was arrested for impaired driving and advised of her right to counsel, which shedeclined to exercise. Later, at the police station, she was subject to DRE testing.

Block J. held that a progression to DRE testing withinthe same impaired driving investigation is not a transition to a “non-routine procedure” for the purposes of Sinclair. [109] Similarly, in R v Fogerty, 2015 NSCA 6, the arresting officer had made a DRE demand, then permitted the accused to consultwith counsel, and then, as a result of the DRE results, made a blood demand. It was held that the initial advice was sufficient, given thatthe blood demand was a natural progression from the DRE testing. [110] In R v Tahmasebi, 2020 ONCA 47, the accused had been accorded his s. 10(

b) rights shortly after his arrest for an impaireddriving offence. After that consultation, the police made DRE and urine sample demands and he was not re-cautioned. In finding that asecond caution was not required by s. 10(b), Zarnett JA concluded as follows: 30 Thus, there is no basis here to reach the conclusion that the initial advice the appellant received, after being charged withimpaired driving, was not sufficient and correct to address the foreseeable consequences of that charge, namely a DRE demand anddepending upon its result, an oral fluid or urine sample demand.

There was, to use the words of Fogarty, a “linear progression” from oneto the other, a progression expressly contemplated by the Code. What occurred here, after the initial advice of counsel, was neither theresult of changed circumstances or new developments. The procedures undertaken by the police were not, viewed in the context of animpaired driving investigation, non-routine such as to fall outside of what would be expected to be covered by the initial advice theappellant received. [111] The case of R v Brown, 2020 ONCJ 193 raised somewhat unique circumstances.

The accused had been charged with drivingwhile impaired by methamphetamine, among other drugs, as well as possession of cocaine. Following his consultation with duty counsel,he was advised that he would be taken to a hospital for blood to be drawn. It seems that the legislation authorizing the blood demand inthat context had only come into force 4 days earlier (para. 4), and the hospital staff subsequently refused to draw blood without theaccused’s consent. Given these and other complications, it was held that s. 10(

b) had required a second consultation with counsel. 6.2 Application of legal principles and conclusions [112] In the present case, I conclude that s. 10(

b) of the Charter did not require Cst. Taylor to either make the blood demand prior tothe accused’s consultation with counsel, or to accord him a second opportunity to consult with counsel after the blood demand had beenmade.

In all the circumstances of this case, notably (1) the accused had been advised that he was being arrested for an impaired drivingoffence; (2) the accused was injured and present in the hospital; (3) the applicable blood demand legislation had been in force for manyyears; and (4) it was obviously impractical to bring the accused before a breathalyzer technician, a blood demand was not a “non-routine” procedure falling outside of what one would expect to be covered by the initial advice that the accused would be expected tohave received. Rather, such a demand was a foreseeable consequence of the charge. 7.

The s. 8 and s. 10(

b) Challenges – “Operating Mind” [113] In relation to both his s. 8 and s. 10(

b) challenges, the accused argues that, as a result of the injuries he sustained in the collision,as well as the medication that had been administered to him both by the ambulance attendants and at the hospital, he was unable toapprehend the nature of his jeopardy, and unable to avail himself of legal assistance for the purposes of s. 10(b). The accused arguesfurther that since he was unable to validly consent to a blood demand, his lack of cognitive ability rendered the blood demand andresulting seizures unreasonable since they were carried out in an unreasonable manner for the purposes of s. 8. 7.1 Legal principles [114] The police’s duty to adequately explain the accused’s s. 10(

b) rights was examined by McLachlin J. (as she then was) in R vEvans, (SCC), [1991] 1 SCR 869 at p. 891: Dealing first with the initial arrest, I am satisfied that the police did not comply with s. 10(b). It is true that they informed the appellant ofhis right to counsel. But they did not explain that right when he indicated that he did not understand it. A person who does not understandhis or her right cannot be expected to assert it. The purpose of s. 10(

b) is to require the police to communicate the right to counsel to thedetainee. In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the policeare required to go no further (unless the detainee indicates a desire to retain counsel, in which case they must comply with the second and

third duties set out above). But where, as here, there is a positive indication that the accused does not understand his right to counsel, thepolice cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that understanding.[Emphasis in original] [115] Subsequently, in R v Bartle, (SCC), [1994] 3 SCR 173 at p. 193, Lamer C.J. cited Evans in support of the rulethat “absent special circumstances indicating that a detainee may not understand the s. 10(

b) caution, such as language difficulties or aknown or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(

b) caution”.See also: R v Willier, 2010 SCC 37 at para. 31; R v Culotta, 2018 ONCA 665 at para. 38. [116] In R v Whittle, (SCC), [1994] 2 SCR 914 at para. 51, Sopinka J. held that an assessment of a detainee’sunderstanding of the right to counsel in s. 10(

b) is governed by the “operating mind” test: 51 In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required forfitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function ofcounsel and that he or she can dispense with counsel even if this is not in the accused's best interests. It is not necessary that the accusedpossess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right tosilence.

The accused must have the mental capacity of an operating mind as outlined above. 7.2 Application and conclusions [117] In the present case, I do not find that there were special circumstances which required Cst. Taylor to take any additional steps toensure that the accused understood his rights and the extent of his jeopardy. Further, the evidence does not establish that the accusedlacked an operating mind at the relevant time. [118] The accused had recently been in a motor vehicle collision in which he sustained head trauma and a chest injury.

He hadpresumably been provided with medication by the medical personnel who had been treating him. But these circumstances do not, in andof themselves, establish that the accused lacked an operating mind at the time. [119] Cst. Taylor stated at various points throughout his testimony that the accused appeared to understand Cst. Taylor’s questionsand the advice he was providing. The accused did not lead any evidence refuting this testimony. [120] Ms. Reimer testified that she did administer 100 micrograms of fentanyl to the accused to treat his leg pain.

She also stated thatshe was careful to give a dosage that was not powerful enough to “snow” the accused to the point where he could not provide reliableanswers to Ms. Reimer’s questions. The PCR prepared at the time reflected scaled assessments of the accused’s cognitive functioning,and no concerns were noted.

The PCR also states that the accused was “Alert to Person; Alert to Place; Alert to Time; Alert toSituation”, although it is not entirely clear whether these entries were made before or after the fentanyl was administered. [121] As noted above, some of the entries in the accused’s medical records indicate that he may have been provided with additionalmedication at the hospital, including fentanyl.

Although those records were marked as an exhibit, no knowledgeable witness was calledto explain or interpret them, and in the absence of any such testimony, I am unable to conclude from my own reading of their contentsthat either his injuries or the medications administered to him deprived the accused of an operating mind. [122] Cst. Taylor did testify that after reading the blood demand to the accused, the accused’s mother, who was at hand, expressed aconcern that the accused may not have understood the demand and its consequences.

This statement by the accused’s mother may wellhave raised a special circumstance requiring Cst. Taylor to take additional steps. Cst. Taylor did take additional steps. In reaction to thiscomment, he read the demand to the accused a second time, and the accused then agreed to provide blood samples. No furthercircumstances in the second exchange suggested any lack of understanding by the accused. I do not find that Cst.

Taylor was required totake any additional steps beyond the second reading. [123] In conclusion, I do not find that the circumstances of this case raise concerns respecting the accused’s ability to understand thenature of his jeopardy, his right to counsel, or the nature of the blood demand. Hence, I do not find the occurrence of any violation of ss.8 or 10(

b) of the Charter as a result of a lack of understanding or the absence of an operating mind on the part of the accused at the timeof his interactions with Cst. Taylor. 8. The s. 10(

b) Challenge - Privacy [124] In his s. 10(

b) challenge, the accused argues that Cst. Taylor violated the privacy component of s. 10(

b) by failing to accord theaccused an opportunity to speak with a lawyer in private. In particular, he argues that he had no ability to have a privileged conversationwith a lawyer since his consultation occurred in the presence of at least three other persons, being his mother, his father, and his sister. 8.1 Facts relating to the issue of privacy [125] Cst. Taylor testified that at 4:58 am, while the accused was in a hospital bed in Pod A5 of the University of Alberta hospital, headvised the accused that he was under arrest and also advised him of his right to counsel under s. 10(b).

No complaint is presently raisedwith respect to the content of that advice. [126] By referring to his notes, Cst. Taylor recalled that three of the accused’s family members were present at his bedside at the time– his mother, his father, and his sister. Including Cst. Taylor and the accused, there was a total of five persons present. Although it wassuggested to Cst. Taylor during cross-examination that a female cousin may also have been present, Cst. Taylor had no recollection ofanother family member.

[127] In response to Cst. Taylor’s s. 10(

b) advice, the accused indicated that he did wish to call a lawyer. [128] Cst. Taylor did not have a good memory of how it was that the accused indicated that he wished to speak to a free legal aidlawyer as opposed to another lawyer. However, Cst. Taylor was sure that he had not imposed that decision upon the accused. He thendialed the number he had for a free lawyer on his police issued cell phone, and handed the phone to the accused. [129] Cst.

Taylor testified that he was aware that privacy is paramount in this context, and so he did specifically raise the subject ofthe presence of the accused’s family members, and the accused told him that he was okay with them being present, and that they wouldhelp him by holding the phone for him. [130] Cst. Taylor then stated that he walked perhaps 10 to 15 metres away from the accused’s location, and out of any sort of hearingrange. Cst. Taylor stated that he was alert to making sure that the accused had the privacy he needed and so he was alert to the entirescene.

He said that no one walked close by, and there were no other patients in the pod. As he put it, the accused had as much privacy asone can get in a hospital. [131] At 5:10 am, the accused’s father came over to Cst. Taylor to return the phone, and advised that the accused was finishedspeaking with a lawyer. Cst. Taylor then walked over to the accused and asked whether the accused had spoken to a lawyer and theaccused stated that he had spoken to a lawyer. [132] Moments later, Cst.

Taylor provided the accused with a standard caution, and moments after that, presented the accused with ablood demand. [133] Although Cst. Taylor was thoroughly cross-examined, the accused did not lead evidence to contradict his version of events. 8.2 Legal principles [134] Of course, the right to consult with counsel in private is an integral component of the right enshrined in s. 10(

b) of the Charter.In R v Playford, (1987), (ON CA), 63 O.R. (2d) 289 (CA) Goodman J.A. examined this point as follows: In my opinion, the right to retain and instruct counsel without delay carries with it the right to do so in privacy. It would defy commonsense to expect an accused person to instruct counsel properly when his instructions can be overheard by other persons and in particularby police officers. Such lack of privacy might even seriously prejudice his ability to retain counsel.

Retention of counsel usually requiressome explanation by the accused of the circumstances which have led to his arrest. [...] It seems clear that, so far as circumstances permit, an accused should not be questioned by police until he has had the right to retain andinstruct counsel and that right is one that is to be afforded to him without delay in so far as circumstances permit. Privacy is a matterwhich is inherent in that right. In my opinion, proof that an accused could instruct and consult counsel in private only by whispering orby some other unusual device does not meet the test of privacy.

An accused who believes that his conversation will be overheard by thepolice will of course be substantially prejudiced in making use of his right to retain and instruct counsel. That does not mean, of course,that every accused who has such belief no matter how unreasonable, can assert that his right to retain and instruct counsel has beeninfringed.

Where the circumstances are such that an accused would reasonably believe that his conversation to retain or instruct counselcould be overheard by police, it cannot be said that his right to privacy has not been infringed unless it can be shown that he was in factable to retain and instruct counsel privately. [135] The fact that an individual may be detained in a busy place, such as a hospital, does not abrogate the privacy component of s.10(b). In R v Taylor, 2014 SCC 50 at para. 34, Abella J. wrote: An individual who enters a hospital to receive medical treatment is not in a Charter- free zone.

Where the individual has requestedaccess to counsel and is in custody at the hospital, the police have an obligation under s. 10(

b) to take steps to ascertain whether privateaccess to a phone is in fact available, given the circumstances.

Since most hospitals have phones, it is not a question simply of whetherthe individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phoneconversation is not reasonably feasible. [136] The net effect of Taylor was summarized by the Court of Appeal in R v McConnell, 2018 ABCA 51: 9 As was recognized in Taylor, there “may well be circumstances when it will not be possible to facilitate private access to a lawyerfor a detained person receiving emergency medical treatment”: para 31.

As the Crown submits, mere “access to a phone” is not the issue,as there are a number of conditions and limitations in play: (

a) access must be in a place where privacy is possible, specifically where the police or other parties will not overhear any privilegedcommunications; (

b) while the access must be private, it must also be sufficiently secure that the police can maintain control over the detained person; (

c) access must be in a place where the detained person has access to lawyers' telephone numbers, the number for Legal Aid, and othernecessary information; and (

d) the telephone must be in a safe environment, as during the call the police officer must be separated to some extent from the detainedperson. 10 Hospitals are busy places, and many operate at full capacity. As acknowledged in Taylor, there may be logistical impediments:many rooms are unsuitable because they contain potentially dangerous objects (syringes, scalpels, etc.) or confidential files. For the

same reason that a police officer does not have to allow use of his or her personal cell phone (Taylor at para 29), medical staff cannot beexpected to share their offices with detained persons. That said, police have a duty to take reasonable steps to determine whether there isa place where the necessary privacy is available, while still allowing the police to control the detained person. [137] The applicable cases have recommended, but stopped short of requiring, police officers to expressly advise a detainee that hisright to consult with counsel includes a right to do so in private.

The prevailing view is that a failure to advise the accused of their right toinstruct counsel in private does not, in and of itself, amount to a breach of s. 10(b) (R v Rudolph (1986), (AB KB), 32CCC (3d) 179 (Alta QB) at pp. 182-84 (Alta. Q.B.); R v Haudegand (1989), (SK KB), 77 Sask R 280 (QB) at pp.280-82). However, in R v Jackson (1993), (ON CA), 15 OR (3d) 709 (CA), Goodman J.A. held that the police maybe required to provide such advice in certain circumstances: ...In my opinion, where the circumstances surrounding the giving of information to an accused person with respect to his rights under s.10(

b) are such as to lead him to reasonably believe that he does not have the right to retain and instruct counsel in private or will not begiven such right and where such circumstances are known or ought to be known to the person giving the information and he knows orought to know the effect such circumstances may reasonably have on the accused, there is a duty on the informing officer to explain tothe accused that he has such right to privacy and that it will be given to him.

The failure to give such explanation constitutes, in my view,a breach of the Charter right of the accused. [138] Goodman J.A.’s analysis in Jackson was subjected to some criticism by Prowse J.A. in R v Butler (1995), (BC CA), 104 CCC (3d) 198 (BCCA) at p. 209 on the basis that it “places an onus on the police, in certain circumstances, to divinewhether an accused person knows he has the right to consult counsel in private”. 8.3 Application and conclusions [139] Applying these legal principles to the present case, I do not find that s. 10(

b) required Cst. Taylor to take any additional steps toensure the accused’s privacy during his consultation with counsel. [140] Leaving aside for the moment the presence of the accused’s family members, the testimony before me did not establish theexistence of any privacy concerns respecting the accused’s location on a hospital bed in Pod A5. Cst. Taylor walked out of earshot, whileremaining alert to the presence of other persons or circumstances that might compromise the privacy of the accused’s conversation. Hesaw none. [141] I do not find that Taylor (the case) required Cst.

Taylor (the police officer) to make inquiries with hospital staff or to take anyother additional steps to move the accused to a different location. Although, as the Court of Appeal stated in McConnell, hospitals areoften busy places operating at full capacity, that was not the case on this particular occasion. As Cst. Taylor put it, the accused had aboutas much privacy as you can get in a hospital. [142] Turning next to the issue raised by the presence of the accused’s family members, I do not find that their presence resulted in aviolation of the accused’s right to have a private consultation with legal counsel.

Unlike the circumstances in Jackson, the individuals athand in the present case were not police officers holding the accused in their custody. Rather, the nearby individuals were his ownfamily members. The accused was required to exercise his right to counsel with reasonable diligence. He was an adult person, and if hewished to speak to counsel in the absence of his family members, he could presumably have told them to leave. [143] Further, and in any event, Cst.

Taylor testified that since he understood privacy to be a paramount consideration in this context,he specifically raised the subject of privacy with the accused, and the accused told him that he was okay with his family members beingpresent. This testimony was not contradicted by any other evidence. Hence, even assuming that the reasoning in Jackson did require Cst.Taylor to take reasonable steps to ensure that the accused understood that he could speak to a lawyer in private, reasonable steps weretaken. [144] During argument, there was some discussion about whether Cst.

Taylor might have been required to actually direct or order theaccused’s family members to leave the accused’s bedside during the call. I conclude that he was not required to take that step. Rather, itwas reasonable for Cst. Taylor to leave the decision respecting the presence of the family members to the ac

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