R. v. Hunt, 2020 ONCJ 627

ONTARIO COURT OF JUSTICE CITATION: R. v. Hunt , 2020 ONCJ 627 DATE: June 1, 2020 Central East Region BETWEEN: HER MAJESTY THE QUEEN — AND — SAMUEL HUNT Before Justice F. Javed Heard on February 25, 27, 28, 2020 Reasons on Application and trial proceedings released electronically on June 1, 2020 D. Slessor ......................................................................................... counsel for the Crown S. Gill .......................................................................................... counsel for the defendant F. JAVED J.: - I.

INTRODUCTION [ 1 ] It is a fundamental tenet of the Canadian criminal justice system that any person charged with a criminal offence is entitled to a fair trial by being able to make full answer and defence. This right is enshrined in s.11(

d) of the Charter of Rights and Freedoms (“ Charter ”) and is jealously protected by the courts. When a court determines that a person was deprived of the right to a fair trial for whatever reason(s), the Charter provides a court with some means to redress the unfairness. One remedy is to exclude evidence so it can’t be used against the person during the trial, while another is to terminate or “stay” the prosecution. [ 2 ] In this case, Mr.

Hunt (the Applicant), argues he was deprived of the right to have a fair trial because the state violated his Charter rights by unconstitutionally securing his blood sample, then losing the blood sample, followed with a negligent and slow police investigation. He says these alleged constitutional violations should result in the court excluding the evidence of his elevated blood alcohol concentration (BAC) readings and/or awarding him the drastic remedy of staying the prosecution. [ 3 ] A snapshot of the case will place these arguments in proper context. In September 2017, Mr.

Hunt was arrested for the offence of impaired driving after he was involved in a head-on motor vehicle collision. The collision caused the other driver to suffer injuries. Acting Sergeant Brown of the Durham Regional Police Service (“A/Sgt Brown”) investigated Mr. Hunt who was found in the driver’s seat of his vehicle covered in his own vomit. He appeared intoxicated. A/Sgt Brown determined he needed medical attention, so he sent Mr. Hunt to the hospital even though Mr. Hunt did not ask to go. At the hospital, a nurse took blood from Mr. Hunt at the instruction of a doctor.

The blood test included testing for ethanol, which measures if there is alcohol in one’s body. A/Sgt Brown advised he would return to the hospital armed with a search warrant to seize Mr. Hunt’s blood. Mr. Hunt was left at the hospital to sober up and was not, at that time, charged with any criminal offences. He was told he could go home. Three days later, A/Sgt Brown discovered Mr. Hunt’s blood was not available to be seized by the police.

The matter was turned over to a criminal investigator, Detective Constable Shaddick (“DC Shaddick”), who would later testify at trial that the police investigation “fell through the cracks”. After some months, a production order was obtained for Mr. Hunt’s hospital records, which were used by the Centre of Forensic Sciences (“CFS”) to form an opinion that Mr. Hunt’s BAC exceeded 80mgs of alcohol in 100mls of blood at the time of the collision. Finally, after waiting over 13 months, Mr.

Hunt was formally charged with the criminal allegations contrary to the Criminal Code : having care or control of a motor vehicle while his blood alcohol concentration exceeded 80 mgs of alcohol in 100 mls of blood contrary to s.253(1) (

a) and two counts of impaired operation of a motor vehicle causing bodily harm contrary to s.255(2) . [1] [ 4 ] Mr. Hunt’s trial was heard before me over the course of three days. The Crown called A/Sgt. Brown, DC Shaddick, Jennifer Evans, the nurse who took Mr. Hunt’s blood at the hospital, and Randal Soubasis, a laboratory technician who described the way the blood was tested. Mr. Hunt filed an affidavit on the Charter voir dire . He was cross-examined by Crown counsel, Mr. Slessor. The parties agreed to blend the evidence of the Crown’s witnesses on the Charter and trial issues but not the evidence of Mr.

Hunt who decided not to testify on the trial issues. [ 5 ] During the trial, the Crown sought a ruling on the admissibility of Mr. Hunt’s hospital records. Mr. Gill on behalf of Mr. Hunt argued against their admission. In a brief oral ruling, I ruled the hospital records were admissible pursuant to a common law exception to

the hearsay rule, subject to the Charter ruling: Ares v. Venner, (SCC), [1970] S.C.R. 608; R. v. Grimba and Wilder,[1977] O.J. No. 2606 (Co. Ct.); R. v. Monkhouse, 1987 ABCA 227 , [1987] A.J. No. 1031(C.A.) at pg. 7. On the blended voirdire, I heard evidence from a nurse, Ms. Evans. I was satisfied that the hospital records were made by a person who was under a duty torecord the information, the records were recorded in the ordinary practice of the business and the records were contemporaneously madewith the facts stated in the records.

I was also satisfied the hospital records were reliable, such that they were created without a motive tomisrepresent facts. [6] The Crown also tendered the opinion of Rachelle Wallage, a toxicologist employed with the CFS as Exhibit 2. This too wasadmitted subject to the Charter ruling. The defence did not seek to cross-examine Ms. Wallage on her opinion on either the Charter ortrial issues. II. THE PROCEDURAL BACKGROUND [7] Mr. Gill advanced several Charter arguments but did not initially argue against the admissibility of a production order which wasused to secure Mr. Hunt’s hospital records.

The hospital records were then used by Ms. Wallage to prepare her opinion that Mr. Hunt’sBAC at the relevant time exceeded 80mgs of alcohol in 100mls of blood. The production order was judicially authorized, and the lawtreats it as presumptively valid subject to a challenge against its admission. One mode of challenge is to argue that the order could nothave been authorized because it was obtained without reasonable suspicion and violated s.8 of the Charter. Mr. Gill did not launch thischallenge.

However, as the trial progressed, it became clear that the thrust of the defence position was to challenge the admissibility ofthe opinion of Ms. Wallage, which by implication, would mean the evidence she relied on to form her opinion, namely the hospitalrecords which contained information about Mr. Hunt’s blood tests. This issue first reared its head during the cross-examination of DCShaddick, the affiant of the Information to Obtain (“ITO”) in support of the production order. Mr. Gill launched into a series of questionsdesigned to undermine the basis for the grounds he relied on to secure the production order.

The Crown objected citing that no Charterapplication was filed on this basis nor was there an application seeking leave to cross-examine the affiant: R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421. Mr. Gill clarified he was not seeking to challenge the issuance of the production order, but rather, wasattempting to adduce evidence about the chronology of the investigation which he was going to later argue was negligent. I permittedhim to explore the evidence on this basis. [8] However, as the evidence unfolded, it became clear that Mr.

Gill was seeking to implicitly challenge the production order, evenif there was no explicit Charter challenge. After some discussion, I gave him overnight to consider his position to determine if he wouldseek leave to amend his Charter materials. Mr. Gill returned with a request to reframe his Charter arguments but not because he wantedto launch a s.8 facial or sub-facial challenge to the production order, but rather, he wanted to argue under s.7/8 that the court shouldexercise its residual discretion to set aside the production order because it was obtained in a subversive manner: R. v.

Strauss, 2017ONCA 628 , [2017] O.J. No. 4084 (Ont. C.A.); R. v. Paryniuk, 2017 ONCA 87. As part of this application, Mr. Gill did not seekto recall DC Shaddick nor call any other evidence but instead asked that any evidence already called on the Charter voir dires apply tothis issue. Mr. Slessor understandably opposed this request which he said was a tactical shift in strategy. While I understood the Crown’sconcern, I permitted Mr. Gill to pursue the argument because I did not see it as a change in tactics. It was clear that Mr.

Gill’s trialstrategy was to attack the admissibility of the blood evidence which was used to obtain the BAC readings. This would include theproduction order. The law provides for some procedural flexibility in adjudicating Charter applications to avoid an unfair result: R. v.Tash, (ON SC), [2008] O.J. No. 200 (S.C.J.). While the timing and lack of notice was imperfect, the Crown was notprejudiced given the scope of the issue as framed by Mr. Gill.

Both counsel had conducted an extensive examination-in-chief and cross-examination of the relevant witnesses and both chose to not to call any additional evidence. [9] At the end of the voir dire, Mr. Gill sought a ruling on the Charter issues before proceeding further with the substantive trialissues. However, he also advised he would not be calling any defence evidence on the trial issues irrespective of the Charter ruling.Equally, Mr. Slessor advised the Crown would also not be calling any evidence on the trial issues.

Given the positions of the parties, Iinvited submissions on all issues mindful of my obligation to separately analyze the Charter and trial issues in one ruling. Specifically, Iwould not rely on Mr. Hunt’s evidence on the voir dire on the trial issues. As a procedural safeguard, I permitted the parties tosupplement their oral submissions with written submissions, if necessary, and set a timeline to exchange materials. The parties agreed toproceed in this fashion. A date for judgment on all issues was set for April 6, 2020.

In the interim, the court did not receive any furtherwritten submissions. [10] On April 6, 2020, the matter did not proceed as scheduled given the health emergency caused by the novel Coronavirus(“COVID-19”). As directed by the Chief of the Ontario Court of Justice, all non-urgent, out of custody matters would be presumptivelyadjourned for 10 weeks. In this case, the matter was presumptively adjourned to June 2, 2020.

As my part of inherent duty to minimizedelay, the court communicated with the parties in advance of the return date to canvass their position on whether the proceedings couldproceed remotely by audioconference pursuant to s.715.24 of the Criminal Code. The court invited submissions on this issue in light ofPart XX11.01 of the Criminal Code which creates a presumption for in-person attendances subject to provisions of the Code. Bothcounsel responded they were consenting to proceed remotely, by audioconference.

The parties did not make submissions against proceeding by audioconference.[2] Accordingly, to promote an efficient hearing, the court offered to deliver this ruling to counsel electronically prior to June 2, 2020 with a direction that Mr. Gill provide a copy to his client, Mr. Hunt.[3] III. OVERVIEW OF POSITIONS OF THE PARTIES [11] Distilled to its core, the overall defence position alleges an incompetent police investigation, which Mr. Gill argues hasirreparably breached Mr. Hunt’s fair trial rights under the Charter. He says this should entitle Mr.

Hunt to a Charter remedy ofexcluding the evidence under s.24(2) and/or staying the proceedings under s.24(1). The alleged police incompetence is premised on anumber of things including: a roadside investigation that was not Charter compliant, unacceptable police negligence in permitting bloodto be destroyed which isn’t available for the defence to independently test, the indifferent and slow approach to the investigation whichlead to inordinate pre-charge delay causing memory loss and anxiety for Mr.

Hunt and finally, material non-disclosure to an issuingJustice when applying for a production order which subverted the administration of justice. Mr. Gill argued these discrete and repeatedCharter violations were deliberate and serious and require the court to intervene to cure the injustice.

[ 12 ] Mr. Slessor disagrees – on all fronts. The Crown position is that the police investigation, while imperfect, was Charter compliant and did not result in an unfair trial or the inability to make full answer and defence. He says there is no evidence that the hospital employees were acting at the behest of the police, which makes the seizure of Mr. Hunt’s blood and therefore the seizure of the hospital records, lawful. Mr. Slessor concedes it is unfortunate the blood is not available, but this was not because of state misconduct.

Further, he says there is no merit to the lost evidence complaint because the police didn’t lose anything. Finally, the delay in arriving at trial caused no unfairness because Mr. Hunt’s evidence on the prejudice he suffered should be rejected. Mr. Slessor says this imperfect case is nowhere close to being stayed as a remedy of last resort. IV.

SUMMARY OF LEGAL CONCLUSIONS [ 13 ] For reasons that follow, I am in substantial agreement with the Crown’s position and conclude there were no Charter violations of consequence in this case. In short, the police investigation, while imperfect, was not plagued with unacceptable negligence or unfairness. Mr. Hunt’s blood was seized for medical purposes and lawfully tested. His hospital records were lawfully obtained pursuant to a valid court order and exist independently of his blood. There were no proven Charter violations with the exception of one area involving the provision of rights to counsel (“RTC”) under s.10(

b) of the Charter . Specifically, the evidence as a whole establishes that Mr. Hunt was not provided his RTC without delay and wasn’t properly informed of his RTC at the hospital when the investigation shifted from a breath to blood demand and after time had passed from the roadside investigation. However, as I will explain, these missteps were largely a byproduct of the unique factual circumstances of this case and do not give rise to a serious problem that would otherwise attract a Charter remedy.

On this record, they were purely inconsequential because the police conduct was not serious nor motivated by fad faith. Instead, the conduct was imperfect, like the circumstances of this case, but not unfair. Further, Mr. Hunt never chose to exercise his RTC thus any problems in this area had no impact on his Charter protected rights. In the final analysis, Mr. Hunt was a patient in a hospital and the police used lawful means to obtain his medical records to generate an opinion about his BAC level.

While this case proceeded slower than most drinking and driving cases, it was not plagued with lost evidence or unacceptable negligence. Mr. Hunt was not deprived of his right to a fair trial and there is no basis to exclude the evidence and/or stay the proceedings. The blood evidence, including the hospital records, are Charter compliant and admissible. The Charter applications are therefore dismissed. I will explain my conclusions below beginning with an identification of the legal issues. V. ISSUES [ 14 ] The Charter issues in this case overlap in many respects.

I propose to address them in a chronological manner given Mr. Hunt’s allegation that his fair trial rights were compromised by an unfair police investigation. This requires a closer examination of the police investigation. I will address the discrete Charter complaints within the wider umbrella of an incompetent police investigation, which wasn’t specifically advanced as a separate Charter violation, but appears to be the defence anchor. [ 15 ] Accordingly, the issues for the court to determine are: (

i) Was Mr. Hunt arbitrarily detained under s.9 of the Charter because A/Sgt Brown did not have reasonable and probable grounds to arrest him for an offence under s.495(1) of the Code ? (ii) Was there a s.8 Charter violation by the failure of A/Sgt Brown to have sufficient grounds to make an approved instrument demand? (iii) Did A/Sgt Brown breach Mr. Hunt’s s.10(

b) Charter rights by failing to: a. Inform Mr. Hunt of his RTC without delay? b. Holding off in administering a breath and blood demand to ensure he understood his rights and the demands; and c. Provide reasonable assistance in implementing his RTC; (iv) Was there a s.8 Charter violation on the basis that the hospital staff were acting as state agents in taking Mr. Hunt’s blood? (

v) Was there a s. 8 Charter violation on the basis that A/Sgt Brown violated Mr. Hunt’s right to privacy because he was present during the seizure of his blood? (vi) Was there a s.7 Charter violation because the police lost evidence of Mr. Hunt’s blood? (vii) Was Mr. Hunt deprived of the right to a fair trial guaranteed by s.11(

d) of the Charter by the pre-charge delay in charging him with a criminal offence? Related to this, was the police investigation incompetent? (viii) If there were proven Charter violation(s), has the defence met their onus to exclude the evidence under s.24(2) ? (ix) Should the production order authorizing seizure of Mr. Hunt’s hospital records be set aside because it was obtained in a subversive manner? (

x) If the evidence is otherwise admissible, has Mr. Hunt met his onus under s. 24(1) to stay the proceedings? and finally, (xi) If the evidence is admissible, has the Crown proven the elements of the two offences beyond a reasonable doubt? VI. THE BACKGROUND FACTS A. The Collision [ 16 ] On September 19, 2017, at approximately 10:15 p.m., Ms. Kathey Herbert picked up her husband from the Ajax Go station. It was a gorgeous day with good road conditions. Ms. Herbert was driving a new Honda Civic motor vehicle while her husband was the

passenger. She approached Bayly St. in Ajax, in the region of Durham, and noticed the lanes narrowed in both directions due to construction. [ 17 ] Ms. Herbert testified she saw the headlights of a vehicle driving towards her. I find this vehicle was being operated by Mr. Hunt. Ms. Herbert began to panic, as there was nowhere to go given the narrowed lanes. Accordingly, she swerved and two collided head on. The force of the collision caused her to slam into concrete construction blocks. The force of the impact caused her air bags to be deployed.

She recalled there was dust everywhere and worried her vehicle would catch fire. The on-star system in the vehicle automatically deployed and called an ambulance. She was in horrific pain in her back and her hands felt “wonky”. B. The Injuries [ 18 ] The ambulance took both Ms. Herbert and her husband to the Ajax hospital. She explained she broke both hands, which required a soft cast and later a hard cast. She also broke two fingers in her left arm. The right hand took 6 weeks to recover while the left hand took 8-9 weeks. She continues to have difficulties using her two hands at full capacity.

Further, her back was fractured and treated with a bone simulator. She was bedridden for a month. After the casts were removed, she worked with a physiotherapist for at least twice a week for a few months. [ 19 ] I find these injuries clearly make out “bodily harm” as defined by s.2 of the Criminal Code (“ Code ”). [ 20 ] There is no evidence of Mr. Hunt suffering any injuries even though he testified he suspected he may have suffered a concussion. In cross-examination, Mr. Hunt testified he was out with his friend Adam but couldn’t recall his last name.

While he recalled throwing up, he couldn’t recall if it was due to alcohol consumption or eating too much food. As I will explain below, I find Mr. Hunt was intoxicated by alcohol at the time of the collision which was proven without his evidence on the Charter voir dires . C. The Roadside Investigation [ 21 ] A/Sgt Brown responded to the scene of the collision. He has been a police officer with the DRPS since 2003. In September 2017, he was working as a front-line officer with A Platoon in the Ajax/Pickering area.

On the date in question, he was in uniform and working alone. [ 22 ] At 22:36, he was dispatched to a personal injury motor vehicle collision at Bayly St. and Westney Rd. in Ajax. He explained there are two lanes traveling in an eastbound and westbound direction. On the night in question, there was a lot of construction and the lanes had been reduced to one lane in each direction. [ 23 ] At 22:44 he arrived on scene and saw firefighters, paramedics and remnants of a head on collision. He learned that the Herberts required hospitalization. He turned his attention to the other vehicle, which had two occupants.

Ultimately, he determined the person in the driver’s seat was Mr. Hunt. [ 24 ] Mr. Hunt was covered in vomit. He testified his eyes were glossy and there was an odour of alcohol coming from the vehicle. The air bag had not been deployed. Mr. Hunt was asleep and was not wearing a seatbelt. After rousing him, Mr. Hunt uttered “I am sorry” and fell back asleep. He had difficulty understanding his words and believed he was slurring his words based on his experience in dealing with intoxicated people. While talking to him, he noted an odour of alcohol emanating from his breath. [ 25 ] A/Sgt. Brown asked Mr.

Hunt if he needed to attend at the hospital and he slurred the word “No”. He asked if he could stand up and he responded: “No, I am drunk”. Mr. Hunt was in and out of consciousness and kept slurring, “I am sorry”. At this point, Mr. Hunt was arrested for impaired driving. [ 26 ] On the voir dire , Mr. Hunt acknowledged passing out but did not concede it was due to alcohol consumption. He testified he couldn’t recall if he drank alcohol but had a clearer memory that he was in and out of consciousness “all night”. He attributed this to the accident and not even the possibility of alcohol as a contributing factor.

When pressed, he admitted there were no preexisting medical conditions which explained his near comatose state nor was he diabetic. I reject Mr. Hunt’s evidence on this issue. I found him to be evasive and professing to have a selective memory when it came to alcohol consumption, where his position was he had no recall. At the same time he said he was in and out of consciousness where he would have the ability to recall events. While the collision could have contributed to his near comatose state, I find alcohol was a clear contributing factor. I accept the evidence of A/Sgt Brown that he smelled alcohol on Mr.

Hunt’s breath. I find that Mr. Hunt was clearly impaired by alcohol. [ 27 ] I will now turn to my analysis of the Charter issues. VII. CHARTER ISSUES & ANALYSIS

Section 8 & 9 – Reasonable and Probable Grounds i. Did A/Sgt Brown have reasonable and probable grounds to arrest Mr. Hunt for the offence of impaired driving? Further, was there a s.8 Charter violation by the failure to have sufficient grounds to make an approved instrument and blood demand? [ 28 ] Mr. Gill advanced separate arguments under ss.8 and 9 of the Charter but the evidence on these issues overlaps, thus I propose to address the arguments together. [ 29 ] Section 495(1) of the Code provides: A peace officer may arrest without a warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to

commit an indictable offence; (

b) a person whom he finds committing a criminal offence; or [30] Section 254(3) of the Code (as it was at the time) provided: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may by demand made as soon aspracticable, require the person: (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood, or (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 determine the concentration, if any, of alcohol in the person’s blood and

b) if necessary, to accompany the peace officer for that purpose. [31] Mr. Gill argued that A/Sgt Brown did not have any grounds to arrest Mr. Hunt for a criminal offence pursuant to s.495(1) of theCode which made his detention and arrest arbitrary. Further, there were insufficient grounds to make a breath demand into an approvedinstrument and ultimately insufficient grounds for a blood demand. [32] Mr.

Slessor argues A/Sgt Brown had ample grounds for both the arrest and the two demands. [33] The law provides that the Crown must prove a lawful arrest as well as lawful grounds for an approved instrument demand and/orblood demand, failing which, a s.8/9 Charter violation may be proven: R. v. Alex, 2017 SCC 37 , [2017] 1 SCR 967. If therewere no grounds for an arrest, the detention would be arbitrary. [34] Section 254(3) of the Code requires that a police officer have reasonable and probable grounds to make a breath demand into anapproved instrument.

The Supreme Court has explained this contains both an objective and subjective component. That is, theinvestigating officer must have an honest belief that the suspect has committed an offence and objectively, there must exist reasonablegrounds for this belief. In R. v. Bush, 2010 ONCA 554 , [2010] OJ No. 3453 (Ont. C.A.), Justice Durno writing for the Court ofAppeal summarized the proper approach to be taken by trial judges in assessing whether the necessary reasonable and probable groundsexist. This approach was helpfully summarized by Justice Campbell in R. v.

Suntharalingham, 2012 ONSC 6207 , [2012] O.J.No. 5145 (SCJ) at para. 21. These legal principles are well settled. [35] In R. v. Notaro, 2018 ONCA 449, Justice Paciocco observed at paragraphs 34-35: 34 The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asksherself. It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by theobjective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72.

As Durno J.(sitting ad hoc)noted in Bush, at para. 70, "the issue is not whether the officer could have conducted a more thorough investigation. The issue iswhether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so." 35 This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonableand probable grounds.

After all, the nature and quality of the investigation will affect the information that the officer has, and cantherefore indirectly influence the sufficiency of the officer's grounds. The point is that the material focus in a reasonable and probablegrounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on whatthe information known to the officer would mean to a reasonable person. [36] A/Sgt Brown testified that at 22:47, thus 3 minutes after arriving on scene, he formed reasonable grounds that Mr.

Hunt’s abilityto operate a motor vehicle was impaired by alcohol. He stated that while he had information of a collision prior to attending, he hadinvestigated many drinking and driving offences in the past and knew of his obligation to form independent grounds which he did. Incross-examination, he acknowledged that Mr. Hunt’s near comatose-like condition could have been due to the collision but it wasobvious to him that Mr. Hunt was intoxicated by alcohol.

He didn’t think he suffered from a concussion because he was in and out ofconsciousness and was somewhat responsive and was able to walk with his assistance to the ambulance. He did not pass out completelysuggesting he was unconscious. I accept this evidence and find Mr. Hunt was not concussed. Moreover, Mr. Hunt never testified he wasconcussed at any point. [37] I find on the totality of the evidence, A/Sgt Brown could reasonably rely on the following facts supporting his honest belief thatMr. Hunt was impaired by alcohol: (

i) the circumstances of the unexplained head on collision, (ii) finding Mr. Hunt in the driver’s seat while being in and out of consciousness; (iii) the smell of alcohol emanating from the vehicle, which he isolated to Mr. Hunt after speaking with him; (iv) the odour of alcohol coming from Mr. Hunt’s breath; (

v) Mr. Hunt admitting he was “drunk” and

(vi) Mr. Hunt’s repeated and incoherent apologies. [38] A/Sgt Brown testified Mr. Hunt was arrested for the offence of impaired driving. He did not ask him to exit from his vehicle toform any additional grounds. Nor was he initially handcuffed during the detention. Given his intoxicated state, he wanted to confirm hisidentity so he reached into his pants and obtained his wallet. The defence did not argue this was a breach of s.8 but in any event, I findthis was reasonable given Mr. Hunt’s state and the obligation to identify a driver under the Highway Traffic Act.

A/Sgt Brown located adriver’s license and confirmed his identity. While Ms. Herbert was not asked to identify Mr. Hunt in the courtroom, I find the Crown hasclearly proven identification beyond a reasonable doubt. I will address this further when I discuss the trial issues. Mr. Hunt had to beassisted out of the vehicle and was escorted to the ambulance to be seen by the paramedics. I accept the evidence of A/Sgt Brown thatduring this walk of about 80 feet, Mr. Hunt was stumbling and swaying – which was after and independent of his grounds for arrest.

Mr.Hunt didn’t want to go to the hospital and sat on the bumper of the ambulance. A/Sgt Brown said Mr. Hunt appeared to fall asleep andhad to be roused and escorted to his cruiser. Mr. Hunt sat in the back of the cruiser with the door open. Mr. Hunt could not recall any ofthese details. In fact, he had very little or no memory of the roadside interaction. [39] A/Sgt Brown had a subjective belief that Mr.

Hunt’s ability to operate a vehicle was impaired by the consumption of alcohol.Further, I am satisfied based on the totality of the information available to him that there were, objectively viewed, reasonable groundsfor him to believe that Mr. Hunt was operating a vehicle while his ability to do so was impaired by alcohol. Courts have held that insome circumstances, consumption of alcohol plus an unexplained accident may generate reasonable and probable grounds but notalways: R. v. Rhyason, 2007 SCC 39 , [2007] S.C.J No. 39 at para. 19. Here, there were no factors that pointed away to an“explained” collision.

While there was construction and the roads were narrowed, there is no evidence before me that the head-oncollision was caused by an error attributed to the construction, mechanics of the vehicle or the like. Ms. Herbert testified there were twomarked lanes and she was properly in her lane and Mr. Hunt came into the wrong lane of traffic and caused the collision. I accept this.Nor is there evidence that Mr. Hunt fell asleep at the wheel prior to the collision. Overall, the reasonable grounds standard was easilymet. A/Sgt. Brown did not have to have enough grounds to prove impairment beyond a reasonable doubt.

The s.8 Charter argument istherefore dismissed. [40] Similarly, there is no merit to the argument that A/Sgt. Brown engaged in an unlawful arrest under s.495(1) of the Code. I rely onmy above comments in finding that A/Sgt Brown had subjective grounds supported by objective facts to believe that Mr. Hunt hadcommitted an indictable offence. Indeed, a reasonable person standing in the shoes of A/Sgt Brown could easily conclude that there werereasonable and probable grounds for an arrest: R. v. Storrey (SCC), [1990] S.C.J. No. 12 at para. 17. Accordingly, Mr.Hunt was not arbitrarily detained.

The argument under s.9 of the Charter is similarly dismissed. Turning next to the s.10 Charterarguments.

Section 10 Charter – Rights to Counsel [41] Mr. Gill advanced a three-prong argument under s.10(

b) of the Charter. The overall focus of the complaints was that Mr. Huntwas unable to understand and act on his rights because of his physical state. Mr. Gill did not advance a violation of s.10(

a) of theCharter which guarantees a person who has been detained the right to be promptly informed of the reasons for his detention: R. v. Evans, (SCC), [1991] 1 SCR 869. (ii-

a) Was there a s.10(

b) Charter violation by failing to inform Mr. Hunt of his RTC without delay?

Section 10(b) – General Principles [42]

Section 10(

b) of the Charter provides that everyone has a right on arrest or detention to retain and instruct counsel without delayand to be informed of that right.

Section 10(

b) imposes certain duties on the police and the detainee. The Supreme Court summarized theobligations on the police in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legalaid and duty counsel: R. v. Devries, 2009 ONCA 477 , [2009] O. J.

No 2421 (C.A.), at paras. 21-23; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [43] The first duty requires the police to provide sufficient information to the detainee whereas the other two duties require the policeto assist the detainee if she decides to exercise her RTC.

Cases have referred to these as the “informational” and “implementational”duties. In 2010, in a trilogy of cases, the Supreme Court recognized that the two duties often overlap. In other words, the scope of theinformation and assistance required will depend on the circumstances of the case: Willier, supra, R. v. Sinclair, 2010 SCC 35 ,[2010] 2 S.C.R. 310 and R. v. McCrimmon, 2010 SCC 36 , [2010] 2 S.C.R. 402. [44] The law also imposes a duty on the detainee to exercise the right with reasonable diligence. A detainee has a RTC of counsel butthe provision does not guarantee the RTC of choice at all times: R. v.

Burlingham (1995), (SCC), 97 C.C.C. (3d) 385(SCC) at para. 16. When the right is invoked, a detainee has the right to choose their counsel and it is only if the lawyer chosen cannot beavailable within a reasonable time, the detainee should be expected to exercise the RTC by calling another lawyer, including dutycounsel: R. v. Ross (1989), (SCC), 46 CCC (3d) 129 (SCC) at 135; R. v. Richfield (ON CA),[2003] O.J. No. 3230 (Ont. C.A.). The law is also clear that the police must hold off from attempting to elicit evidence from a detaineeuntil she has been afforded a reasonable opportunity to exercise her RTC: R. v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289(S.C.C.): R. v. Prospser (1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.); R. v. Traicheff, 2010 ONCA 851, aff’g [2008] OJNo. 4361 (SCJ), aff’g 2007 ONCJ 564. [45] Mr. Gill’s first argument is that A/Sgt Brown did not provide RTC in a timely way or “without delay” resulting in a Charter

violation. Mr. Slessor responds that given the circumstances of the collision and the fact that he was investigating the collision on his own, some delay was warranted and reasonable, given the unique circumstances. [ 46 ] In R. v. Suberu , 2009 SCC 33 , the Supreme Court made it clear that a detainee must be informed of his RTC as soon as the detention arises. The court held at paragraph 41: “If the s. 10(

b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.” The law has developed that although without delay means "immediately" for the purposes of s. 10(b), the immediacy of the obligation is subject to concerns for officer or public safety. [ 47 ] A/Sgt Brown testified he read Mr. Hunt his RTC from his notebook at 22:57, thus 10 minutes after he formed grounds to arrest him.

No issue is taken with the content of the information. Any delay in not advising Mr. Hunt of his RTC during the initial roadside interaction has been constitutionally justified but the period of detention after grounds for an arrest have crystalized is treated differently. Unfortunately, there is very little evidence on this record as to why it took 10 minutes to inform Mr. Hunt of his RTC. While I can reasonably infer that the scene was chaotic and perhaps A/Sgt Brown was undermanned, I still don’t know why A/Sgt Brown didn’t turn his mind to providing RTC. Perhaps it was because Mr.

Hunt was in his words “in and out” of consciousness but it still doesn’t explain why he wasn’t given RTC when he was conscious. The evidence on this issue is simply thin and must inure to the benefit of Mr. Hunt who bears the onus of proving a breach. In the

summary conviction appeal decision of R. v. Ferose , [2019] O.J. No. 645 (Ont. Sup. Ct.) , the trial judge found a s.10(

b) breach due to a similar 10 minute delay in the provision of RTC but said it had a minimal impact on the detainee’s Charter rights as the police were tending to a distressed child. On appeal, the SCAJ judge did not disturb the s.10(

b) finding. There are other cases where a delay is caused by things such as the medical condition of the detainee or passenger, circumstances of an accident, unsafe location of the vehicle on a roadway or something else that needs to be reasonably tended to before an officer can turn her mind to RTC. While I can speculate the circumstances of the accident may have been the reason for the delay and may have justified the delay, I simply don’t know for sure because the issue was never explored. For this reason, I’m satisfied Mr.

Hunt has met his onus on a balance of probabilities and proven he wasn’t afforded his RTC in a timely way – on this record. However, like the court in Ferose , I am of the view that this had a very minimal impact on Mr. Hunt’s Charter protected rights and therefore was of no consequence. See also R. v. Ahmad, 2015 CarswellOnt 16712 (S.C.) , at paras. 17-19 . (ii-

b) Was there a s.10(

b) Charter violation because A/Sgt Brown did not ensure Mr. Hunt understood his RTC? [ 48 ] Mr. Gill’s next argument is that there was a s.10(

b) violation because A/Sgt Brown failed to hold off administering a breath demand, blood demand and providing RTC until he was satisfied that Mr. Hunt was capable of understanding the demands/rights. [ 49 ] Mr. Slessor submits the conduct of A/Sgt Brown was lawful but even if this occasioned a Charter violation, it was inconsequential because at the end of the day, the police did not secure any evidence as a result of the breath and/or blood demand. Nor did Mr. Hunt invoke his RTC or ask to speak to a lawyer, thus it had a minimal impact on his Charter protected rights.

Understanding Rights to Counsel – The Legal Principles [ 50 ] These arguments must begin with a review of the overarching legal principles underlying s.10(

b) of the Charter . The purpose of the right to counsel is to guard against the risk of involuntary self-incrimination and to ensure that the detainee’s choice to speak with police is free and informed. For this reason, the provision of RTC must be comprehensive in scope. Cases where the detainee like Mr. Hunt are unable to understand the RTC because of their state, pose special considerations for the police.

In Evans , at para. 21 , the Supreme Court held that where there are circumstances which suggest a detainee may not understand the information communicated to her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s.10(

b) rights. See also R. v. S.L.H., 2004 BCSC 410 and R. v. Culotta , 2018 ONCA 665 at para. 29 . The extent of these additional steps depends on the circumstances of the case. [ 51 ] In most cases, it can be inferred from the circumstances that the detainee understands what he or she has been told, but where there are circumstances where the detainee may not understand his or her RTC, or has indicated she does not understand them, the police must take steps to facilitate that understanding: Sinclair , at para. 52 .

This includes giving consideration to the detainee’s understanding and capacity to understand: Evans , at para. 44 . [ 52 ] In the case at bar, there is no controversy that A/Sgt Brown informed Mr. Hunt of his RTC at the roadside and Mr. Hunt did not understand them. In fact, A/Sgt Brown candidly testified he had “zero confidence” that Mr. Hunt understood them because he was in and out of consciousness and incoherent. When asked why he bothered even administering the rights given his state, he testified he’s obligated to do so and it’s part of his arrest procedure.

Legally speaking, A/Sgt Brown was right in taking this position. He acknowledged that Mr. Hunt’s responses to him were incoherent and didn’t make much sense. However, I can’t fault A/Sgt Brown for not taking additional time or steps to facilitate the comprehension of RTC at the roadside. Some additional findings are important here. [ 53 ] A/Sgt Brown testified that at 22:57, he read Mr. Hunt his RTC and caution. Again, there is no complaint under s.10(

a) of about the content of this information. At the time, Mr. Hunt had been escorted out of his car and to the police cruiser. In response to the provision of RTC and caution, Mr. Hunt said: “No, I am sorry.” A/Sgt. Brown didn’t take the “No” response as a choice to not exercise his RTC but rather incoherence on the part of Mr. Hunt remained in and out of consciousness and not making sense. He believed, correctly in my view, he was intoxicated. Two minutes later, at 23:00, he read him the breath demand and when asked if he understood, Mr. Hunt responded: “No I am drunk”.

Similarly, he didn’t take the “No” as not understanding the demand but rather more incoherence given his state. He testified he became concerned about Mr. Hunt’s medical wellbeing which prompted him to consult with a paramedic who was on scene. After doing so, he decided it was prudent to send him to the hospital for examination. At that point, even though he had administered a breath demand, he did not think Mr. Hunt would be able to comply, but this could change. He was more concerned with his wellbeing, worrying that Mr. Hunt could die from alcohol poisoning.

I accept this was a reasonable belief at the time given Mr. Hunt’s state. While he was investigating a possible criminal offence, he was also dealing with a serious motor vehicle collision where Mr. Hunt could have been injured. Notably, there is no evidence from Hunt that after he was read RTC, Mr. Hunt indicated he didn’t understand them or asked they be repeated. Indeed, Mr. Hunt never testified he invoked his RTC and this was ignored. I find without hesitation that Mr. Hunt never asked to speak with a lawyer.

[54] Mr. Hunt was placed on a stretcher and A/Sgt Brown notified his police dispatch he would not accompany him in the ambulancebut instead would attend at the hospital in his cruiser. Mr. Hunt was handcuffed to the stretcher in the ambulance for his own safety andthat of the ambulance personnel. There was no Charter complaint on this basis but in my view, this was a reasonable step because he wasunder arrest and in police custody but not under police supervision. It is not a leap of logic that a volatile situation could have eruptedcompromising public safety if Mr.

Hunt was not restrained. [55] At 23:05, the parties left the scene, arriving at the hospital 7 minutes later at 23:12. In the interim, A/Sgt Brown asked for abreath technician to meet him at the hospital as it was his intention at the time, to administer breath tests, if Mr. Hunt’s conditionimproved. Upon arriving at the hospital, Mr. Hunt was triaged and waited in the hallway to be seen by a doctor. He was still on astretcher and still handcuffed. For similar reasons, this restriction of liberty was justified given his state. Mr.

Hunt remained in and out ofconsciousness and continued to make slurred remarks, such as “he was sorry”. A/Sgt Brown said he briefly spoke with the Herberts whowere also at the hospital but was focused on Mr. Hunt. He didn’t take formal statements from anybody at that time which isunderstandable given the location. [56] Mr. Hunt was seen by a triage nurse and then seen by Dr. Mann at 00:15. A/Sgt Brown said he knew of Dr. Mann given hispolice experience of 17 years, but he was not friendly with him. He didn’t know if Dr. Mann knew of him. I accept this evidence. Dr.Mann spent a few minutes with Mr.

Hunt who was still in and out of consciousness. He was standing 2-3 feet away and was noteavesdropping. Dr. Mann advised him that Mr. Hunt would have to attend for x-rays. In cross-examination he said he did not tell Dr.Mann he was investigating him for a drinking and driving offence or that he needed his blood for his investigation. Ultimately, A/Sgt.Brown determined Mr. Hunt would not be able to complete breath tests and instead he would administer a blood demand. Further, PCSheridan, the anticipated breath technician, was at the hospital, but elsewhere. He did not have a conversation with him.

I accept theevidence of A/Sgt Brown that he did not confer with Dr. Mann before he made a decision to administer a blood demand. There is noevidence that Dr. Mann was acting at the behest of the police. [57] At 00:20 am, A/Sgt Brown administered a blood demand from the back of his notebook. Mr. Gill doesn’t take issue with thecontent of the demand but raises the same complaint, namely, there were insufficient grounds and Mr. Hunt wasn’t able to understandthe demand. [58] In my view, this argument suffers from the same fate as the attack on the reasonable grounds to make the breath demand.

A/SgtBrown had the same grounds for the breath demand which did not change over time but rather were fortified by his personal observationsthat Mr. Hunt would not be able to perform breath tests given his medical condition. He was still in and out of consciousness. I findA/Sgt Brown had ample subjective grounds supported by objective facts for a blood demand under the Code. [59] A/Sgt Brown testified Dr. Mann was not present when he made a blood demand. I believe him. Nor were the hospital staffaround or involved in this demand. I believe this as well. He testified Mr.

Hunt did not appear to understand the blood demand as he wasstill in and out of consciousness. [60] A/Sgt Brown testified he never asked any medical personnel to take blood at his behest. He stated despite knowing of Dr. Mann,he didn’t ask him because it’s “common practice due to Mr. Hunt’s rights”, not to ask a medical staff to take blood for the police. In anyevent, he knew that if he did ask Dr. Mann, he would have likely said no. [61] In cross-examination, A/Sgt Brown explained that he made the blood demand because based on his experience and the state ofMr.

Hunt, he was 99% confident that the hospital would take blood for medical purposes. He also knew that x-rays were to be taken. Hesaid his plan was to advise the staff that he would return with a search warrant and seize the blood. [62] In the end, A/Sgt Brown said Mr. Hunt’s “in and out” state did not improve and at 00:04 am, he told the attending nurse that Mr.Hunt was no longer in custody and he could leave once he sobered up. He explained he did this because he felt Mr. Hunt would remainat the hospital for a while and he would not understand a Promise to Appear if he was given one.

He didn’t think it was good use ofpolice time or resources to remain at the hospital for this purpose so he thought it would be better to follow up with him later on. [63] Having considered the evidence as a whole, I disagree with the defence position that there was a s.8 violation on the basis thatthe breath and blood demands were not lawful because A/Sgt Brown failed to ensure Mr. Hunt understood them. In the end, bothdemands became superfluous because neither resulted in Mr. Hunt complying with them. It would have been different if the demandswere made and Mr.

Hunt eventually provided breath samples and/or blood samples after he sobered up, but that’s not the record. In R. v.Squires, (ON CA), [2002] O.J. No. 2314 (C.A.), the Court of Appeal held that a lawful demand should beadministered once a person is able to understand the questions and respond to the demand in a meaningful way. Here, Mr. Hunt wasnever made to respond to the demands and never required to comply with either demand, thus any complaint he didn’t understandsomething he wasn’t required to comply with, is of no consequence. Mr.

Hunt never provided breath tests and his blood was taken by thehospital for medical purposes, not as a result of the blood demand. This part of the s.8 argument has no merit and fails. [64] However, the related s.10(

b) argument premised on Mr. Hunt’s lack of comprehension has more merit, but only marginally so. Itend to agree with Mr. Gill that he failure of A/Sgt Brown to fully ensure that Mr. Hunt properly understood his RTC and legal jeopardyat the hospital, occasioned a s.10(

b) Charter violation but I disagree there was a similar problem at the roadside. For this reason, I aminclined to find a discrete s.10(

b) violation for what didn’t happen at the hospital given the unique circumstances of this case, but not atthe roadside. But, as I will explain, this too was inconsequential and cannot attract a Charter remedy. [65] The purpose of the RTC is so that the detainee can make free and informed choices to speak with the police and minimize therisk of self-incrimination.

In drinking and driving cases, one of the ways this risk is triggered is when the police make a lawful breathdemand which the law requires a detainee to submit to, failing which the person can be charged with a separate offence of refusing tocomply with a breath demand. A detainee has the right to obtain legal advice before providing her breath samples. The law hasrecognized that RTC are constitutionally suspended for some periods of time at the roadside to account for the exigencies of aninvestigation. This is recognized as a reasonable limitation on one’s RTC under s.1 of the Charter.

In Evans, the Supreme Court has heldthat a police officer when administering RTC should give consideration of the person’s capacity to understand the rights. In this case,

A/Sgt’s Brown instinct at the roadside to administer RTC even when Mr. Hunt was in and out of consciousness was legally correct and prudent because Mr. Hunt had been roused from his sleep and was coherent for parts of the interaction. There’s no way that A/Sgt Brown could have known before hand the true extent of Mr. Hunt’s physical condition so it was wise to read RTC. Mr. Hunt was “in and out” of it and gave an incoherent response to the provision of RTC and caution suggesting he didn’t truly understand what was going on.

A/Sgt Brown made a decision, reasonably in my view, that notwithstanding his breath demand, Mr. Hunt first needed medical attention, thus he was going to the hospital, not a police detachment for breath testing. Safety concerns animated his decisions at the roadside which were reasonable. It would have been futile for him to take additional time and steps at the roadside to ascertain if he understood his RTC at that point because of the extent of his condition and because he had some evidence (as little as it was) that Mr. Hunt didn’t decide to exercise his RTC. It would have been different had Mr.

Hunt responded in a way that suggested he was turning his mind to RTC but that’s not the answers he received. Mr. Hunt was incoherent. [ 66 ] Evans involved a case where the police repeatedly interviewed an accused with “subnormal intelligence”. The investigation shifted from a minor marijuana investigation to a more serious murder investigation. Mr. Evans, like Mr. Hunt, was properly informed of his RTC but when he was asked if he understood, he replied in the negative. Here, Mr. Hunt’s answer wasn’t responsive which is fundamentally different from an articulated response. The police proceeded to interview Mr.

Evans, generating incriminating evidence, which the Supreme Court held was a serious breach of s.10(

b) and excluded his statements. In this case, while it is true that A/Sgt Brown knew Mr. Hunt didn’t appear to understand his RTC at the roadside, I think it was reasonable for him to hold the belief that he wouldn’t acquire the capacity to understand them even if he took other steps such as “breaking it down” or repeating them, because of his condition. He was not keen on securing any evidence from him but rather tending to his wellbeing. I agree with his assessment it would have been futile. Further, there is no evidence on the voir dire that Mr.

Hunt asserted his desire or had the capacity to be able to exercise his RTC because he didn’t recall much of anything. This is unlike Evans where the accused made it clear he didn’t understand his RTC which obligated the police to act differently. It would have been unreasonable for him to remain on scene for as long as it took to make sure he understood his RTC which could have compromised Mr. Hunt’s health. That would be absurd.

The fact that he didn’t ride with him in the ambulance to take additional steps to make sure he understood his RTC is a window into his state of mind that he was first and foremost worried about Mr. Hunt’s safety. Accordingly, I don’t find a s.10(

b) violation on this basis. If I am wrong in this conclusion, it was a purely a technical problem devoid of consequence. [ 67 ] That said, I tend to agree with the defence that the circumstances at the hospital were different. The evidence establishes that A/Sgt Brown administered a blood demand at 0020 which is 5 minutes after he was seen by Dr. Mann who told A/Sgt Brown that he would have to attend for x-rays as he was not “medically fit” to perform breath tests.

Based on this information, along with the existing grounds he had for the breath demand, A/Sgt Brown formed grounds for a blood demand which I have found were lawful. Mr. Hunt was still in his custody and largely asleep. In fact, the record establishes that A/Sgt Brown read the blood demand when he [Mr. Hunt] was sleeping. He testified that the purpose of doing so was to let him know that he’s testing for blood and because it was part of his duties to do so. He said Mr. Hunt “didn’t even respond” suggesting Mr. Hunt didn’t have the capacity to understand what was read to him.

Ultimately, A/Sgt Brown decided not to follow through with the blood demand because he was 90% sure that the hospital would take his blood as part of the x-rays that were ordered and he would simply apply for a warrant later on. A/Sgt Brown wasn’t by Mr. Hunt’s side when the hospital extracted blood from him which according to the hospital records was at 0040, thus 20 minutes after the demand. [ 68 ] In my view, the above circumstances as they developed are fertile ground for a s.10(

b) Charter violation, on the basis that A/Sgt Brown should have taken steps to make sure Mr. Hunt understood his RTC at this juncture of the investigation. To be clear, the law did not require him to administer RTC because of a new offence but in my view, the circumstances of the initial recitation of RTC had now materially changed necessitating revisiting the initial RTC which A/Sgt Brown knew Mr. Hunt didn’t understand. Unfortunately, that didn’t happen but as I will explain, given the unique circumstances of this case, this was of no consequence. My reasons for reaching this conclusion are as follows.

First, the scope of Mr. Hunt’s detention had evolved from being at the roadside, where the law allows for the temporary suspension of constitutional rights, to a more secure location, a hospital where the same exigencies don’t exist. The law has held that a hospital is not a Charter free zone. Second, more than one hour had elapsed where the potential effects of a collision and alcohol could have subsided suggesting that a person may be in a better position to comprehend RTC. Third, the safety concerns that existed at the roadside had subsided and Mr. Hunt was at a secure location. Hypothetically, if Mr.

Hunt decided to exercise his RTC at the hospital, it could have been more easily implemented, as compared to the roadside. Fourth, the investigative step of a blood demand is arguably more intrusive than a breath demand, even though it did not technically increase his legal jeopardy. Even though in the end, the police didn’t take Mr. Hunt’s blood, a blood sample is arguably a more serious step where the potential scope of legal advice is different. One’s RTC is designed to arm oneself from self-incrimination and there is a difference in my view, between breath samples and blood sampling.

Fifth, A/Sgt Brown had time at the hospital to take additional steps to facilitate comprehension of RTC which he did not have at the roadside. The evidence establishes he had at least 20 minutes before blood was taken by a nurse where he could have roused him and tried to ensure comprehension of RTC. This is especially so because he was in his words, “asleep” where he would know he couldn’t understand what was read to him unlike the roadside where he was incoherent where Mr. Hunt may not have understood what was read to him.

While legally and technically correct, it’s unhelpful to read RTC to somebody who is asleep. If A/Sgt Brown was being careful, it would not have taken any more effort to try to rouse Mr. Hunt out of his sleep before he’s made to hear and understand RTC. Otherwise, it’s not helpful to anybody. Moreover, the hospital records establish at the time blood was taken, he was “lethargic” but understood blood was drawn suggesting he wasn’t in a deep sleep or truly comatose. For these reasons, I am satisfied on this unique record that there was a s.10(

b) Charter violation on the basis that A/Sgt Brown didn’t take steps to ensure understanding RTC at the hospital. I would think that in most cases this issue wouldn’t arise but this record was unusual. See also R. v. Magalong , 2013 BCCA 478 . [ 69 ] Having found a violation though, this misstep was of absolutely no consequence in this case. For starters, there is no evidence that Mr. Hunt ever invoked his RTC or put otherwise, chose to exercise his RTC at any point during his interaction with the police.

Nor did he say he would have acted differently at the hospital if RTC were explained to him in more clear terms. Viewed this way, it’s hard to fault A/Sgt Brown for what he didn’t do but maybe should have. In the end, Mr. Hunt was a patient at a hospital who was brought there by the police because he was involved in a serious collision and was in and out of consciousness. While I could appreciate his frustration that he was told he could leave after being in police supervision, there is no basis to ground a Charter remedy because of the conduct or lack thereof related to A/Sgt Brown.

I suspect that any further efforts of A/Sgt Brown to facilitate RTC at the hospital might have been futile but I don’t know for sure. However, the law places duties on the police when it comes to the informational component of the RTC and it is on this basis I’m prepared to find a discrete violation. Importantly, this is not a case where a detainee is conscripted into

providing breath samples (or blood samples) in circumstances where he did not understand his RTC and could not make an informeddecision about what to do. See for example R. v. Poire, [1990] O.J. No. 1029 (Ont. Prov. Ct.). Mr. Hunt’s blood was taken by thehospital, who were not acting as police agents. Mr. Hunt was never made to incriminate himself which substantially attenuates anyinformation he didn’t receive. [70] In R. v. Nitura, [2009] B.C.J. No. 1448, Justice Hicks considered a somewhat similar case where the accused collided withanother vehicle and argued at trial there was a s.10(

b) Charter violation where the police did not make sure he understood his RTCbefore the police collected evidence. The Crown argued against a violation because there was no evidence as to the effect of the collisionon his faculties and the conversation recorded by the police was consistent with Mr. Nitura appreciating his circumstances. The courtfound a s.10(

b) Charter violation on the basis that Mr. Nitura was in no shape to understand his rights and because he provided breathsamples after not understanding his RTC. The evidence was excluded under s.24(2). [71] The fundamental difference between this case and Nitura is that Mr. Hunt was never legally obliged to submit to breath testingor the collection of blood for the police. I have also considered the case of R. v. Clarkson (SCC), [1986] 1 S.C.R. 383cited to me by Mr. Gill which I find has no application in this case.

Clarkson involved circumstances where an intoxicated detaineeconfessed to a crime after being advised of his RTC. The Supreme Court was clear that a waiver of one’s RTC must be borne out of anoperating mind and an intoxicated person may not have an operating mind. Clarkson has no application here because Mr. Hunt neverinvoked his RTC and the police never secured any evidence from him. Nor did Mr. Hunt confess to a criminal offence while intoxicated.Therefore, while I am inclined to find a technical s.10(

b) Charter violation on the basis that A/Sgt Brown should have taken steps toclarify the initial RTC after deciding he was going to administer a blood demand, this misstep is of no moment in this case. [72] I now turn to Mr. Gill’s final s.10(

b) complaint surrounding the implementational duties of the police. (ii-

c) Was there a s.10(

b) Charter violation by the failure of A/Sgt Brown to assist Mr. Hunt in implementing his right tocounsel? [73] This argument can be easily addressed because there is no evidence before me that Mr. Hunt invoked his RTC, which is aprecondition to the police duty to implement a detainee’s RTC. To put it differently, Mr. Hunt never asked to exercise his right tocounsel. Implementing Right to Counsel – The Legal Principles [74] The Supreme Court of Canada has consistently held since R. v.

Baig, (SCC), [1987] 2 S.C.R. 537, that theimplementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel":Bartle, supra, at p. 192; Willier, supra, at paras. 30 & 33; and R. v. Taylor, 2014 SCC 50 , [2014] 2 S.C.R. 495, at paras. 23-24.The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise theirright to counsel: R. v. Fuller 2012 ONCA 565, at para. 17.

The question of whether a detainee asserted a desire to consult with counsel isessentially a question of fact: R. v. Backhouse, (ON CA), [2005] O.J. No. 754 (C.A.), at paras. 77-78 and R. v. Owens,2015 ONCA 652 , [2015] O.J. No. 4972 (C.A.), at para. 28 [75] In Sinclair, at para. 27, the Supreme Court also made it clear the implementational duties of the police flowing from s. 10(

b) arenot absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide areasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will besuspended. This has been recently confirmed in Owens, at para. 25; R. v. Burlingham (1995), (SCC), 97 C.C.C. (3d) 385(S.C.C.) at para. 16; R. v. Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; and R. v. Richfield, (ON CA), [2003] O.J. No. 3230 (C.A.). [76] At the risk of repeating myself, Mr.

Hunt never invoked his RTC, both at the roadside or at the hospital. Mr. Gill does notdisagree with this factual finding but instead argues Mr. Hunt couldn’t have invoked his RTC because he was never properly informed ofhis rights, thus the police were required to assist him in implementing the right despite his lack of invocation. In my view, this argumentis without merit. It presupposes that in cases where a person can’t invoke their RTC, the police should still help the detainee inexercising their rights by calling a lawyer for them. Simply stated, that’s not the law.

Furthermore, there is no evidence before me thatMr. Hunt would have chosen to exercise his RTC. It is one thing to inform somebody of a right but it is another for the person to act onit. Mr. Hunt swore in his affidavit that after learning he could leave the hospital, he followed up with the police in the days and monthsthat followed and sought advice and assistance from his family – not a lawyer. In other words, I am not satisfied on a balance ofprobabilities that Mr. Hunt probably would have spoken with a private lawyer or duty counsel to obtain legal advice on the night inquestion had the police waited. Mr.

Gill cited the case of R. v. Taylor, 2014 SCC 50 , [2014] S.C.J. No. 50 but it does not assistthe defence position because there, the evidence was clear that Mr. Taylor invoked his RTC (at para. 5) and the police made no efforts toassist him in implementing his RTC or holding off in securing evidence. The Supreme Court held (at para. 34) that a hospital is not aCharter free-zone and the police must still follow through with their constitutional obligations. In this case, Mr. Gill did not invoke hisRTC at any point, thus Taylor does not apply. Nor is this a case where the police took advantage of Mr.

Gill because of his condition. Asnoted above, the blood was taken by a hospital employee for medical purposes. Similarly, the case of R. v. Henrikson, [2003] M.J. No.387 (Man. Q.B.) also does not apply. [77] Accordingly, there is no merit to the argument that the police failed in their implementational duties. [78] I now turn to the s.8 issues involving the blood sample.

Section 8 Charter Arguments – Blood Sample (iii) Was there a s.8 Charter violation on the basis of the hospital taking Mr. Hunt’s blood? [79] Mr. Gill argues that the seizure of Mr. Hunt’s blood was a s.8 Charter violation because the hospital employees were acting asstate agents and because A/Sgt Brown violated his right to privacy as he was in close proximity when the blood was taken.

[80] Mr. Slessor submits neither argument has merit because the hospital employees were not acting as state agents. [81] I agree with the Crown’s position. Seizure of Blood – The Legal Principles [82]

Section 8 of the Charter protects against unreasonable searches and seizures. When state examination or state action constitutesan intrusion on a reasonable privacy interest of an individual, there is a “search” as contemplated under s.8. In R. v. Dyment,[ (SCC), 1988] 2 SCR 417, Justice La Forest (as he then was) explained where a bodily substance such as blood is taken from apatient at a hospital by a doctor at the request of the police, this can amount to an unreasonable search and seizure for purposes of s.8 ofthe Charter. See also R. v. Pohoretsky, (SCC), [1987] 1 SCR 945.

Almost 5 years later, the Supreme Court reiteratedthat where blood samples are taken at the direction of a police officer, the nurse or doctor are acting as agents of the state which makesthis action state conduct, for purposes of s.8: R. v. Dersh, (SCC), [1993] 3 SCR 768. [83] In the case at bar, while Mr. Hunt did not want to attend at the hospital, A/Sgt Brown felt it was prudent given his almostcomatose-like state at the roadside. This decision was not made alone but after speaking with a paramedic. In my view, this was not anunreasonable decision given what A/Sgt Brown knew at the time.

It would have been unreasonable (and potentially unsafe for Mr. Hunt)for him to take Mr. Hunt to a police detachment and try to obtain breath samples given his state. While it is true that A/Sgt Brownintended on taking breath samples at the hospital, this deflates the defence argument that his true intention was to obtain blood sampleswith the assistance of the hospital staff. Clearly, that was not his intention. It was fixated on Mr. Hunt’s wellbeing. [84] Moreover, A/Sgt Brown did not accompany Mr.

Hunt in the ambulance, which is another window into his state of mind at thetime, suggesting he wanted to ensure his wellbeing and would let the paramedics tend to him. Mr. Hunt was handcuffed to the stretcher,which makes sense because he was in police custody. Turning next to the circumstances of the taking of blood. [85] Jennifer Evans is a Registered Nurse employed with the Lakeridge Health hospital in Ajax. She testified on the Charter voir dire.I found her to be a credible witness. She testified she did not have an independent recollection of treating Mr.

Hunt on the night inquestion but was able to confirm her involvement in the matter based on refreshing her memory from the hospital records in Exhibit A. Iwould not expect her to recall an interaction with Mr. Hunt, let alone any patient in a busy emergency room. This does not detract fromthe credibility or reliability of her account. [86] As noted earlier in these reasons, I ruled the hospital records (Exhibit

A) were admissible pursuant to the common law exceptionto the hearsay rule, subject to the Charter ruling. I did so based on the following findings. Ms. Evans was able to confirm that the recordswere created on September 19, 2017, the date of Mr. Hunt’s admission to the hospital. She recognized her handwriting and signature onthe records. She also recognized the writing of the treating physician, Dr. Mann. Her memory of the events was refreshed from therecords. She testified that at 11:42 pm, Mr. Hunt was registered as a patient at the hospital.

In cross-examination, she testified membersof the public, including police officers are allowed to remain in the emergency waiting area. She could not recall in this case if a policeofficer was present. [87] At 12:05 am, Mr. Hunt was turned over to her after he was seen by Dr. Mann. She recalled this based on the hospital recordswhich requisitioned blood work, x-rays and a CT scan. Mr. Hunt was instructed to remain “NPO” which she said means nothing to eat ordrink. She could not recall if a police officer was present when she received Mr. Hunt. [88] At 12:40 am, she began to take some blood from Mr. Hunt.

Again, she did not recall the specific interaction but based on thehospital records, confirmed she was the nurse who took his blood. Based on her experience and hospital protocol, which she is obligatedto follow at all times, she would have extracted blood from Mr. Hunt in accordance with this protocol. The protocol involves examiningthe requisition, ascertaining what kind of blood tests are to be done and printing the appropriate labels to place on the vials.

As aprecaution, she would examine the patient’s armband to make sure she was dealing with the right person. [89] In this case, the hospital records jogged her recollection that she was asked by Dr. Mann to take 3 vials of blood that werelavender, light green and yellow in colour. Specifically, she was directed to test for a toxicological screen, ASA (acetaminophen), andETOH, which is ethanol, to determine if there is alcohol in one’s blood. After drawing the blood, she would record her identification andCode, the time the blood was drawn and place the vials in a biohazard Ziploc bag.

The vials contain a barcode unique to the patient andwould be sent to the lab in a tube. She testified there would be no reason for her to depart from this established protocol in the case ofMr. Hunt. [90] Further, Ms. Evans testified she had no specific recollection of any police officer being present during the taking of blood. Sheexplained that blood is taken in an open part of the hospital and it would not be unusual for a person to be in the hallway or nearby. Inthis case, she could not recall if a police officer followed her into the area where the blood was taken.

She did not recall speaking with apolice officer at any point including being told the police would obtain a search warrant. Indeed, she had no recollection of most, if notall the interaction but for her involvement based on the records. She said generally, there is no need for a police officer to be presentduring the taking of blood and more firmly, she would never draw blood at the request of a police officer because she takes directiononly from a doctor. [91] The evidence of Ms. Evans stands unchallenged. Mr. Hunt never testified that a police officer was present by his side during thetaking of blood.

A/Sgt Brown testified he saw Ms. Evans take 3 vials of blood, which is consistent with her evidence based on the recordsand only learned her name from her name tag. He said he told Ms. Evans he would obtain a warrant after seeing her package the bloodand storing it into a tube. At 12:40 am, he advised the nursing staff that Mr. Hunt was no longer in custody and to advise Mr. Hunt thathe would follow up with charges in the future. [92] I find as a fact that A/Sgt Browne did not explicitly or implicitly instruct the hospital staff to take blood at the request of thepolice.

While the hospital staff would have known he was in police custody for an offence involving alcohol, this doesn’t necessarilymean the hospital staff became state agents in a police investigation. The police evidence is not undermined by the evidence of Ms.Evans who testified she would never take direction from a police officer to suggest she departed from her usual practice of following her

protocol. Nor does this record allow me to draw a reasonable inference that the police asked the hospital to take blood for the police.Instead, I find that Ms. Evans took blood at the request of Dr. Mann, not the police, and did so based on medical protocol. Accordingly,there was no state sponsored seizure of blood, which means the initial s.8 Charter argument must fail. [93] In Dyment, the police had no reasonable and probable grounds to believe the accused was involved in a criminal offence andobtained medical information by asking a nurse to divulge the ethanol results of the accused.

La Forest J. described this a seriousCharter violation. Similarly, in R. v. Campbell, [2019] O.J. No. 1638 (SCJ), the court found a s.8 Charter violation where the hospitaltook urine from the accused for medical purposes and the police received the test result without legal authority and then used the test fortheir own purposes without the person’s consent. The Court of Appeal upheld the trial judge’s finding that this was a serious s.8 Charterviolation. See also R. v. Erickson, (1992), 1992 ABCA 69 , 72 CCC (3d) 75 (Alta. C.A.), aff’d (SCC), [1993]2 SCR 649 and R. v.

Culotta, 2018 ONCA 665, aff’d, 2018 SCC 57. [94] The circumstances of this case are materially different from Dyment, Campbell or Erickson because A/Sgt Brown never directednor asked the hospital for any evidence. Nor is this case where A/Sgt Brown directed the hospital to “hold” the blood for the police. In R.v. Abbott, [2015] B.C.J. No. 2975 (B.C. Prov. Ct.), the court dealt with a similar case where blood was drawn for medical purposes. Thecourt found that the hospital protocol was to store the blood at the hospital for one week for medical purposes.

In addition, the courtfound that the investigating officer directed a lab technician to set aside the blood after the one-week expiry period as the police wouldapply for a search warrant. The blood was set aside on this basis and resulted in evidence against Mr. Abbott. The court held (at para. 29)“The decision of Martinson (the lab technician) to hold Abbott’s blood sample for the police, after the point in time when it wouldotherwise have been discarded is a seizure within the meaning of s.8. Mr. Abbott clearly had a privacy interest in his own blood.

It waskept by a state agent without his knowledge or consent for reasons unrelated to the medical purpose for which it was taken and beyondthe time frame for which it would otherwise have been in custody of the hospital”. The court found this to be a s.8 Charter violation andexcluded the blood samples under s.24(2). [95] In this case, there is no evidence about how long the hospital would ordinarily store Mr. Hunt’s blood for medical purposes.More importantly, A/Sgt Brown never asked or told anybody to “hold” Mr. Hunt’s blood for the police. I find he simply told Ms.

Evanshe would return with a search warrant, which is different from asking or telling the staff what to do. He never said when he would returnor intimate other details that might lead me to infer he intended to have the hospital staff act as state agents. For example, he did not leavehis card or contact details. Indeed, this may explain why the blood was not available to be seized with a warrant – because he did not askthem to act as state agents in the first place. In my view, Abbott, supra does not apply to this case. Instead, this case is closer to R. v.Racicot, [2009] O.J. No. 5704 (Ont. Prov.

Ct.) where the investigating officer made a request to the hospital staff to obtain and secureblood samples. In Racicot, the court concluded (at para. 13) “The fact that officer Gark seemed satisfied that there were vials of bloodtaken by the nurse does not convert her actions as those of a government agent taken direction from the officer”. In my view, the sameconclusion applies here. Ms. Evans took blood solely as a hospital employee and for medical purposes at the direction of Dr. Mann.

Thefact that one vial included testing for ethanol, which measures alcohol doesn’t necessarily mean it was done at the insistence of thepolice. I believe A/Sgt Brown when he said he was present when Dr. Mann tried to talk to Mr. Hunt, but nothing was learned from thisinteraction as Mr. Hunt was still in and out of consciousness except that he would not be able to do breath tests and would need an x-rayand CT scan. I believe him when he said he never asked Dr. Mann to order specific blood tests which might explain why only thenecessary tests (and only 3 vials) were ordered.

Presumably if the police ordered the blood test, he would have asked for more vials. Hedid not do so. It was reasonable for the hospital to want to know, for example, if Mr. Hunt would fall prey to alcohol poisoning whichwould be a perfectly good reason to test for ethanol. I find the hospital employees were not acting as state agents at any point. [96] Mr. Gill further argues there was a s.8 Charter violation based on the presence of A/Sgt Brown in close proximity to Mr. Huntwhen his blood was extracted.

Respectfully, I disagree. [97] In Dersch, the Supreme Court reiterated that an accused has a reasonable expectation of privacy in respect of his personalmedical information while receiving treatment in the hospital. This would include information that is exchanged dur

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