R. v. Clarke, 2015 ONCJ 303

Citation: R. v. Clarke , 2015 ONCJ 303 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Trevor Clarke Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision Released June 1, 2015 Mr. S. Fountain …………………………………………………………………….for the Crown Mr. B. Carroll and Ms. K. Stein …………………………………………………. for Mr. Clarke Paciocco J. I. Overview [ 1 ] Trevor Clarke is charged with failing to stop after being involved in a motor vehicle accident on October 9, 2012, knowing that bodily harm had been caused to Jennifer Leonard, contrary to section 252(1.2).

He is also charged, arising out of the same event, with impaired driving causing bodily harm to Jennifer Leonard (section 255(2)), and operating a motor vehicle with more than eighty milligrams of alcohol in one hundred millilitres of blood while causing an accident resulting in bodily harm to Jennifer Leonard (section 255(2.1)). [ 2 ] I have no doubt that Mr. Clarke’s Ford F-150 pickup truck was, in fact, involved in the October 9, 2012 accident that caused bodily harm, a tragic brain injury, to Ms. Leonard.

She was struck from behind by the mirror of a Ford F-150 pickup truck and brushed along its side while she was cycling next to the shoulder on McGee Side Road. That mirror and its housing were found at the scene. Shortly after, Mr. Clarke’s truck was observed to be missing its mirror and the mirror’s housing. The items found at the scene matched his vehicle perfectly. Mr. Clarke’s vehicle also bore fresh scratches and scuffs consistent with side-swiping a bicycle. Dirt had been rubbed away in a middle band along the passenger’s side of the car. Appropriately, Mr.

Clarke’s counsel did not argue that his truck may not have been involved in the accident. It clearly was. [ 3 ] What is contested is whether the Crown can prove beyond a reasonable doubt on admissible evidence that Mr. Clarke was driving at the time of the accident, and that he was impaired or had more than the legal limit of alcohol in his blood when Ms. Leonard was struck. It is also in issue whether, if Mr. Clarke was the driver, he knew or was wilfully blind at the relevant time that he had caused an accident, and that the accident injured another person. [ 4 ] Mr.

Clarke’s trial was conducted as a blended voir dire to accommodate applications by the Crown to admit statements attributed to Mr. Clarke, and to entertain, in an efficient manner, Charter applications brought by Mr. Clarke, seeking the exclusion of evidence. [ 5 ] Having considered evidence relevant to the voir dire issues, I find that none of the statements attributed to Mr. Clarke should be excluded according to the confession rule.

With respect to the statements received by non-police witnesses, they cannot be excluded using this rule because none of these civilians were “persons in authority,” and the confession rule applies only to persons in authority. The objective test for persons in authority is not met because none of these persons were engaged as state agents in the arrest, detention, examination or prosecution of Mr. Clarke. While Chief Burks and Captain Grant detained Mr. Clarke, it was because of concern for his well-being, not because of police direction. Any questions asked of Mr.

Clarke by these witnesses and Paramedic Downey was posed for the same purpose – to assess Mr. Clarke’s health, and not to aid in his prosecution. Moreover, I am satisfied that Mr. Clarke did not reasonably believe these people to have the ability to influence his arrest or prosecution. Accordingly, the statements attributed to Mr. Clarke by these people cannot be excluded, either using the operating mind rule, or the voluntariness rule.

[ 6 ] With respect to police witnesses, the Crown did not attempt to prove any statements made to Cst. Kennedy and Cst. Nitschmann. The Crown could not because, remarkably, neither officer recorded anything Mr. Clarke said to them when they interviewed him. The Crown is seeking to admit statements made to Cst. Harper, however, and I am persuaded beyond a reasonable doubt that those statements do not offend the confession rule. I am convinced that by the time Mr. Clarke was speaking to Cst. Harper, he had an operating mind.

His decision to speak to her was also free from any inducements or oppressive conduct that could have caused him to speak involuntary. He was brash and confident during his time in the breath room with her, and I am persuaded that he chose to say what he said. [ 7 ] I am persuaded, however, that Mr. Clarke’s Charter rights were violated. Nothing that the civilian witnesses did raises Charter questions, because these civilians are not state agents. The breaches I am referring to were committed by the police, specifically, Cst. Kennedy. [ 8 ] Some of these breaches flow from the fact that Mr.

Clarke was detained in law from the moment he was directed by Cst. Kennedy to accompany officers to a meeting room. This was not a mere investigative detention. Mr. Clarke was under a direction that he no doubt reasonably believed he had no choice but to comply with. [ 9 ] During the course of that detention and afterwards, Mr. Clarke’s

section 10(

a) rights were breached when he was not given full information about the reason for his detention, and again when Cst. Kennedy told Mr. Clarke’s lawyer only about the “over 80” charge, and not that Mr. Clarke was a suspect in an alcohol related hit and run accident that caused bodily injury to another person. His

section 10(

b) rights were also breached because he was not advised of his right to counsel when detained, he was not given the opportunity to exercise that right without delay when it was possible to do so, and he was questioned before he had a reasonable opportunity to consult counsel. [ 10 ] These multiple breaches are serious. The failure to inform Mr.

Clarke fully about why he was detained, the failure to advise him without undue delay of the right to retain and instruct counsel, and the failure to forestall using him as a source of evidence until he had a reasonable opportunity to consult counsel, in particular, reflect either unacceptable ignorance of basic Charter rights, or a reckless disregard for those rights. [ 11 ] Moreover, the impact of those breaches on Mr. Clarke’s Charter protected interests was, with respect to some of the evidence secured, significant. [ 12 ] The statements he gave to Cst.

Harper are presumptively inadmissible, and given the seriousness of the breaches, and the fact that Mr. Clarke may not have made any statements if his lawyer knew of the full extent of Mr. Clarke’s jeopardy when advising him, I am excluding them, even bearing in mind the impact that exclusion can have on the repute of the administration of justice. [ 13 ] The same holds true of observations made by the officers derived from his speaking, specifically evidence by police officers about his slurring, his confusion, and the inappropriateness of his interactions.

This evidence is also being excluded to preserve the repute of the administration of justice. I am not, however, excluding the passive observations of the redness and glassiness of Mr. Clarke’s eyes, given that the discovery of this evidence is unrelated to the breaches that occurred. [ 14 ] Most significantly, I am excluding the breath samples furnished by Mr. Clarke to Cst. Harper.

Their admission would bring the administration of justice into disrepute, given the seriousness of the breaches and the fact that he provided those samples after legal advice based on misinformation. [ 15 ] Based on the evidence I have admitted, Mr. Clarke cannot be convicted of the offence of being involved in an accident that caused bodily harm to another person, while having more than the legal amount of alcohol in his body. There is no admissible evidence before me relating to the precise quantity of alcohol Mr.

Clarke had in his blood at the time. [ 16 ] The evidence I have admitted does, however, convince me beyond a reasonable doubt that Mr. Clarke operated the motor vehicle that struck Ms. Leonard. I also have no doubt based on the civilian evidence and the few police observations I have admitted that Mr. Clarke was significantly impaired by alcohol when this happened. His impairment caused the accident, and therefore the serious bodily injury to Ms. Leonard that occurred. I am therefore finding Mr. Clarke guilty of the offence of impaired operation causing bodily harm. [ 17 ] I must, however, find Mr.

Clarke not guilty of the “failing to stop” offence. I am left in a reasonable doubt about whether Mr.

Clarke knew or was wilfully blind to having collided with a person, precisely because he was so drunk. He cannot, therefore, be convicted of this offence, but he can be punished for getting himself to that point of intoxication and thereby harming Ms. Leonard. [ 18 ] The detailed reasons that support these findings are contained below. I will begin the analysis by setting out a general timeline and factual skeleton based on uncontested evidence. II. The Factual Context [ 19 ] Ms. Leonard has no memory of the accident and therefore could add little direct testimony about what had occurred, or its timeline.

I do accept her evidence, however, that she habitually rode her cycle on the edge of the road next to the shoulder. That is a sensible and obvious practice. [ 20 ] Even without evidence from Ms. Leonard about the accident, it is possible to conclude that the collision occurred after 3:33 p.m., and before 4:00 p.m., when Mr. Bruce Paul happened upon Ms. Leonard, laying on the shoulder with her feet on the roadway. Traffic is not busy on McGee Side Road during the afternoons so she could have laid there for some time.

The most dependable estimate is that the accident likely occurred sometime after 3:40 p.m., given that Ms. Leonard lives at 210 West Lake Circle and had to cycle to the collision scene, some distance away. She probably began her ride after completing a phone call with her sister Susan Band. Since I have no evidence that Ms. Leonard was actually at home at the time of the phone call, however, it is entirely possible that she may have made the call while en route.

I cannot therefore pin down the time of the accident more accurately than the period between 3:33 p.m. and 4:00 p.m. [ 21 ] This accident occurred on a long straight stretch of road, on a clear dry day. There were no traffic signals to distract a driver’s attention. Ms. Leonard would have been plainly visible to an oncoming driver and it should have been an easy matter to avoid her. [ 22 ] Mr. Paul did not call 911 immediately upon finding Ms. Leonard down on the road, but had some interaction with her first, in an effort to assess her condition. Before long, an unidentified woman came by and called 911.

I have no evidence of precisely when that call was placed. [ 23 ] There is evidence that at 4:12 p.m. the area Fire Station at 559 Donald B. Munro Road received a dispatch call for paramedic services related to this collision. By 4:16 p.m. the first Fire Service vehicle left the Fire Hall for the accident scene. Witness and volunteer Fire Fighter, Roger Woeller, estimated the distance to be approximately 7 kilometres.

The first Fire Service responder arrived at 4:21 p.m., ahead of the paramedics and the police service. [ 24 ] At approximately the same time, around 4:20 p.m. or so, Chief Christopher Burks noticed Mr. Clarke at the Fire Hall. Mr. Clarke was coming out of the washroom. Chief Burks bases the time when he first saw Mr. Clarke on the dispatch records for the on-scene accident call. That call lasted from 4:12 p.m. until 4:31 p.m. Chief Burks estimated that this call was a third to half over when he noticed Mr. Clark, hence the 4:20 p.m. approximation I am offering here. [ 25 ] Chief Burks observed that Mr.

Clarke did not look well, “like he was in some distress.” At some point after noticing Mr. Clarke, Chief Burks got up from his seat at the “watch desk” and spoke to Mr. Clarke, who was not totally responsive. It is not clear whether Chief Burks approached Mr. Clarke while he was still on the on-scene call, or after that call ended at 4:31 p.m. [ 26 ] In any event, Chief Burks had Mr. Clarke sit down in the watch desk room where Chief Burks had been on the phone. He asked Mr. Clarke three or four questions to see how responsive he was, but Mr. Clarke did not appear 100% there. He had a glazed look about him.

He also had an injury to his lip. Chief Burks said Mr. Clarke also appeared to have a bump to his head, which no other witness confirmed. Chief Burks knew that other firefighters were going to arrive, so he asked Mr. Clarke to sit there until he could get further help. Chief Burks said there was a strange odour coming from Mr. Clarke, so Chief Burks suspected the problem could be diabetes. [ 27 ] A short time later, Volunteer Fire Fighter Taylor Beck, who coincidentally had sold the Ford F-150 to Mr. Clarke a few months before, arrived in response to a page to another accident scene. It took Mr.

Beck approximately 3 minutes to get to the Fire Station after being dispatched. Mr. Beck believes the dispatch was around 4:30 p.m., but I find that he arrived earlier. Using dispatch logs to assist in his evidence, Chief Burks testified that the relevant dispatch call came in at 4:18 p.m. [ 28 ] In any event, when Mr. Beck arrived, Chief Burks was with Mr. Clarke, who appeared to Mr. Beck to be “out of it a little bit,”

and Chief Burks was trying to figure out what was going on. The Chief was questioning Mr. Clarke. Mr. Beck heard the Chief ask Mr. Clarke if he had been drinking. Some “new recruits” were also asking questions of Mr. Clarke, including whether he had been drinking. Mr. Beck removed them from the room “to let the Chief do his thing,” and testified that he did not hear any of the responses Mr, Clarke may have offered. Chief Burks testified that Mr. Clarke gave no response when asked if he had been drinking. [ 29 ] Chief Burks subsequently summoned Mr. Beck back and asked him to use a flashlight to test Mr.

Clarke’s pupils, which he did. Mr. Beck said he did not smell any alcohol on Mr. Clarke’s breath, despite their proximity. [ 30 ] A short time later, probably 4:45 p.m., Captain Wayne Grant responded at the Fire Hall. He saw Mr. Beck with Mr. Clarke and Chief Burks. Chief Burks motioned Captain Grant into the office and asked him to sit with Mr. Clarke. Captain Grant testified that Mr. Clarke was disoriented but responsive. His upper lip was swollen. His talking was slurred, and he was “kind of wavering.” He did not look steady. There was an odour coming from Mr.

Clarke, but Captain Grant said he could not distinguish what it was. [ 31 ] Inconsistent evidence about the narrative that follows was provided, including about how and when the damage to Mr. Clarke’s vehicle was observed; about when Chief Burks asked Captain Grant to keep Mr. Clarke in the watch room; about where the keys to the vehicle were located, and about when a paramedic examination of Mr.

Clarke was conducted by Paramedic Lorraine Downey. [ 32 ] After examining the evidence, and for the reasons about to be described, I am satisfied beyond a reasonable doubt that shortly after Captain Grant arrived, Chief Burks learned in a phone call with Mr. Woellers that the side mirror of a dark Ford truck had been found at the scene of the accident. At some point Chief Burks advised Mr. Beck of this, who told Chief Burks that Mr. Clarke’s black Ford F-150 was in the parking lot. This prompted Chief Burks to inspect the truck. During that inspection, Chief Burks and Mr. Beck confirmed that Mr.

Clarke’s side view mirror was missing, and that the vehicle had fresh scuffs and scratches along its side. I am also satisfied that, at this time, Mr. Beck noticed that the green emergency lights on the vehicle were still on, and turned them off. I have no doubt that it was this observation of the truck, at some time after Captain Grant arrived at 4:45 p.m., that caused Chief Burks to decide to phone the police. I am persuaded that from the outset. Chief Burks did not want to leave Mr. Clarke alone because he was concerned for his well-being. It is for that reason that he asked Captain Grant to keep Mr.

Clarke with him while Chief Burks left to call the police. It was after Chief Burks went to the vehicle that either Chief Burks or Captain Grant took the truck keys from Mr. Clarke, because of concern about Mr. Clarke’s ability to drive and fear for his safety. I am also convinced that while waiting for the police to arrive, Chief Burks asked Ms. Downey to examine Mr. Clarke and she was still doing so when the police arrived. [ 33 ] With some variation, this scenario is taken substantially from the evidence of Chief Burks, coupled with observations offered by Captain Grant, Paramedic Downey, and Mr. Beck.

I have no material concerns about the credibility of any of these witnesses. Chief Burks, Captain Grant, and Mr. Beck knew and worked with Mr. Clarke. They have no basis for wanting to offer false testimony against him. They were cautious in the evidence they offered, and not resistant to cross-examination. [ 34 ] There are reliability concerns that do arise, however, for each of these witnesses. This incident occurred well over a year before these witnesses testified, and with the exception of Paramedic Downey, they testified without the benefit of notes.

I am allowing for the risks of memory, misperception and miscommunication by examining how plausible their testimony is, and how it fits with the other evidence in the case, including dispatch logs. [ 35 ] The scenario I have identified above is supported, then, by the following. [ 36 ] I accept the testimony of Chief Burks that Mr. Woeller reported to Chief Burks during a phone call from the accident scene that a dark coloured side mirror had been found at the scene of the accident, which one of the extraction guys recognized as coming from a Ford F-150. Mr.

Brent Fields, who was at the scene, testified that he was the one who identified the make of the vehicle the mirror belonged to. It appears that this phone call may have taken place after Captain Grant arrived and was sitting with Mr. Clarke, because Chief Burks testified that he asked Captain Grant to stay with Mr. Clarke so that he could go out to the “apparatus floor” to have a phone call with Mr. Woeller. This was likely the call where Chief Burks first learned about the F-150 mirror having been found. [ 37 ] At some point after the call, Chief Burks must have shared this information with Mr. Beck.

I say this because I accept the evidence of Chief Burks that Mr. Beck told him that a black F-150, which belonged to Trevor Clarke, was parked outside. Mr. Beck would have had no reason to tell Chief Burks this unless Mr. Beck had been apprised that the accident appeared to have been caused by a dark coloured truck. Chief Burks testified that after learning about the Clarke vehicle, he went outside with Mr. Beck to inspect it. This would have been while Captain Grant was still sitting with Mr. Clarke.

[ 38 ] Mr. Beck gave a different account of his visit to the vehicle. Mr. Beck said that he went out to the vehicle not with Chief Burks, but with Captain Grant, after Captain Grant asked Mr. Beck if he knew how Mr. Clarke got to the station. Captain Grant does not support Mr. Beck on this. Captain Grant testified that he went out to the vehicle to retrieve Mr. Clarke’s phone because Mr. Clarke wanted to call his wife to tell her that someone needed to pick up the kids and it is then that he saw the damage. He did not describe accompanying anyone else. In all of the circumstances I find that Mr.

Beck misremembers the incident. He accompanied Chief Burks, not Captain Grant, as Chief Burks testified. [ 39 ] Even though I have found that Mr. Beck was confused about whom he visited the vehicle with, I do accept that he noticed that the green emergency flashing lights, installed on the Ford F-150, were still on when he went to the truck. This is a precise piece of information, unlikely to have been imagined, and there is no reason to believe that Mr. Beck invented this account. [ 40 ] I also find that Captain Grant went out to the vehicle later, after Mr. Beck and Chief Burks had already done so.

I say this because Captain Grant did not note the damage when coming into the Fire Station. He saw it when he went out to retrieve Mr. Clarke’s phone so that Mr. Clarke could call his wife to tell her someone had to pick up the children. Captain Grant had, therefore, already joined Chief Burks in the watch room, before he left to inspect the truck. As indicated, it was Mr. Beck who advised Chief Burks that Mr. Clarke’s vehicle was outside, and this is what prompted Chief Burks to examine Mr. Clarke’s vehicle, and this is how he discovered the damage.

It is not feasible that Captain Grant would have gone out before this occurred, unexpectedly noted damage and returned, yet not have advised Chief Burks about it. The only logical reason for Captain Grant’s evidence that he never mentioned the damage he saw to Chief Burks is that Captain Grant would have been aware that Chief Burks had already seen the damage. I am aware that Captain Grant testified that he saw the damage before the police were called. This may be so, but I have no doubt that Captain Grant went to the truck only after Chief Burks and Mr.

Beck did. [ 41 ] The evidence before me is that when Chief Burks returned from inspecting the motor vehicle, he decided to call the police. I accept Chief Burks’ evidence that he went back inside and, apparently, once again told Captain Grant to stay with Mr. Clarke while he went out to make the call. Since there was a phone in the watch room where Mr. Clarke was sitting it is evident that Chief Burks did not want to make the call in front of Mr. Clarke. Significantly, I accept Chief Grant’s explanation for why he asked Captain Grant to remain with Mr. Clarke and not let him leave. He was concerned about Mr.

Clarke’s wellbeing, given his apparent cognitive difficulties, and did not want him to leave for his own safety. In his words, his concern was “not a police issue.” [ 42 ] Chief Burks and Captain Grant offer inconsistent evidence about how Mr. Clarke’s keys came to be in Chief Burks’ possession. Chief Burks said he took the keys from Mr. Clarke’s pocket after he inspected the truck, because he did not want Mr. Clarke to leave, and that he told Mr. Clarke that they were being taken for safe keeping. Captain Grant said that he believes he took the keys when inspecting the truck, and gave them to Chief Burks.

I think Chief Burks is probably right. As indicated, I believe that by the time Captain Grant went out to the car to retrieve the cellphone, Mr. Beck and Chief Grant had already gone out, and Mr. Beck entered and turned off the emergency lights. I doubt that they would have missed the keys in the vehicle. Since I cannot make this finding beyond a reasonable doubt, however, the only confidence I can have is that either of them took his keys, perhaps from Mr. Clarke, perhaps from his truck. What Chief Burks and Captain Grant agree upon is that Mr.

Clarke should not have his keys, for his own safety. [ 43 ] I also find that even though he generally gave a dependable narrative of events, Chief Burks was confused about when he asked paramedic Lorraine Downey to look at Mr. Clarke. Chief Burks seemed to think it was shortly after he met Mr. Clarke that day. Paramedic Downey testified, with the benefit of notes, that this occurred at approximately 5:40 p.m., and her examination lasted 5-10 minutes. [ 44 ] Paramedic Downey met with Mr. Clarke to examine him, while others were speaking to him. Mr.

Clarke passed the Glasco Coma scale examination with 15 on 15, and verbally he was oriented, except with respect to recent events. [ 45 ] Paramedic Downey noted that his eyes were very glassy, and that he smelled of alcohol. He had a swollen right lip but she did not record any slurring and was able to understand Mr. Clarke. During her time with Mr. Clarke, Ms. Downey asked questions and received answers. [ 46 ] After Paramedic Downey completed the examination, she went to the washroom and when coming out she met with Mr. Clarke in the hallway. He asked her if he could leave. She told him to ask the Chief.

She explained that she did so because she felt the Chain of Command should make that determination, given that she felt he was intoxicated, and she did not think he should leave “for everyone’s best interest.” [ 47 ] At 5:55 p.m. Cst. Nitschmann arrived at the Fire Station. She testified that Mr. Clarke was still with the paramedics. At 6:03 p.m.

Cst. Kennedy arrived. He received a complete briefing from Chief Burks, including Chief Burks sharing that Mr. Clarke had an odour ofalcohol. [48] Cst. Kennedy then went to speak with Mr. Clarke. Cst. Kennedy did not meet with Mr. Clarke in the office where he had beensitting with Captain Grant, but, according to Cst. Nitschmann, asked Mr. Clarke to go into a nearby meeting room to discuss the matter.Only Cst. Kennedy and Cst. Nitschmann and Mr. Clarke were present in that meeting room. [49] Once inside, Cst. Kennedy cautioned Mr. Clarke. Cst.

Nistchmann did not remember exactly what was said, but both he and Cst.Kennnedy testified that Mr. Clarke was cautioned on the “fail to remain.” Both Cst. Nitschmann and Cst. Kennedy then madeobservations about Mr. Clarke’s condition, the admissibility of which is challenged under the Charter application. [50] At 6:13 p.m. Cst, Kennedy administered a roadside screening device, also the subject of a request for Charter exclusion. Cst.Nitshcmann noted that Mr. Clarke was arrested by Cst. Kennedy at 6:19 p.m. after this test was administered. Cst.

Kennedy said that thearrest was for “driving over 80, blood alcohol over 80,” after Mr. Clarke failed the blood alcohol screening test, [51] Cst. Kennedy also testified that he read Mr. Clarke his rights to counsel. He offered no time as to when he did so. Whentestifying, however, he linked this event to the arrest. Yet Cst. Nitshmann, who witnessed the arrest, said she did not see Cst. Kennedygive Mr. Clarke his rights to counsel. Cst. Kennedy testified that this probably took place in the police car and not in the office, a point Iwill return to below. [52] In any event, at 6:22 p.m.Mr.

Clarke was read the breath demand, probably in the police car. At 6:36 p.m. Cst. Kennedy left tobring him to the Huntmar police station, arriving at 6:51 p.m. [53] At 6:58 p.m. Mr. Clarke was connected by telephone with defence counsel, Mr. Bob Carew. Cst. Kennedy, who facilitated thatcall, testified that he told Mr. Carew that Mr. Clarke had been arrested for “over 80.” Nothing was said about the accident, or the bodilyharm that Mr. Clarke was suspected of having caused to Ms. Leonard. [54] Mr.

Clarke spoke to his lawyer from that time until 7:11 when he was turned over to a qualified breathalyzer technician, Cst.Jennifer Harper. Before doing so Cst. Kennedy told Cst. Harper, when giving her his grounds for arrest, about the motor vehicle accidentthat he believed Mr. Clarke to have been involved in, and the injury to Ms. Leonard. [55] While with Cst. Harper, Mr. Clarke furnished breath samples that are subject to the Charter exclusion application. As a result ofthe alleged Charter breaches, Mr.

Clarke also seeks to exclude the observations made by Cst.Harper, and the video recording of Mr.Clarke while he was inside in the Intoxilyzer room. [56] With this factual skeleton in mind, I will consider what contested evidence, if any, I am lawfully permitted to consider. I willbegin with whether statements should be excluded under the confession rule, and then examine the Charter applications for exclusion. III.

Ruling on the Voluntariness of the Statements [57] The confession rule prevents most statements made to “persons in authority” from being admitted into evidence, unless theCrown proves that those statements were voluntary, beyond a reasonable doubt. A voluntary statement is one that the accused chooses tomake.

While the issue is the general one of whether the accused made a meaningful choice to speak, voluntariness is typicallydetermined by examining whether the Crown has disproved, beyond a reasonable doubt, that persons in authority offered anyinducements, or created an atmosphere of oppression, that caused the accused person to speak without voluntarily choosing to do so: R.v. Oickle (2000), 2000 SCC 38 , 147 C.C.C.(3d) 321 (S.C.C.); R. v.

Spencer (2007), 2007 SCC 11 , 217 C.C.C. (3d)353 (S.C.C.). [58] There is another material dimension to the confession rule; statements made to persons in authority are not admissible whenmade to persons in authority, even if those persons in authority did nothing to cause the accused to speak, unless the Crown provesbeyond a reasonable doubt that the accused had an “operating mind” at the time: R. v. Hodgson (SCC), [1998] S.C.J.No. 66 at para 48.

This issue will arise for consideration, of course, only if there is some basis on the evidence for believing that theaccused may not have had an operating mind, as is the case here given the evidence that Mr. Clarke was “out of it.”

[59] Both branches of the confession rule, that “a statement made by an accused … must have been made voluntarily” and therequirement that a confession “must be the product of an operating mind,” apply solely where the accused is speaking to a person inauthority: R. v. Hodgson, supra at para 48. This is because the function of the voluntariness rule is to ensure fairness by ensuring that “aperson in the power of the state’s criminal process has the right to freely choose whether to make a statement to the police”: R. v.Hodgson, supra at para 22, citing R. v.

Hebert (SCC), [1990] 2 S.C.R. 151 at 173. [60] If a statement is made to someone not “in authority” under circumstances that cast doubt on its voluntariness or on the operatingmind of the accused, it is not prima facie inadmissible, but a judge should consider the impact of those concerns on the weight thestatement should be given: R v. Hodgson, supra. [61] In law, a person in authority includes “someone engaged in the arrest, detention, examination or prosecution of the accused”: R.v. Hodgson, supra at para 48.

Without controversy, Constables Kennedy, Nitschmann and Harper are persons who were in authority inthe relevant sense, when speaking to Mr. Clarke. [62] Remarkably, there is virtually no evidence of any statements made by Mr. Clarke, to Constables Kennedy and Nitschmann, eventhough Cst. Kennedy interviewed Mr. Clarke at some length in the presence of Cst. Nitschmann, and even though questions were askedand answered. Neither officer recorded anything nor could either officer recall anything that Mr. Clarke said. All Cst. Nitschmann couldoffer was that Mr.

Clarke did not seem to know if he was at work or on Carp Road at home. No explanations for that impression wereoffered. There are therefore no statements from this period available for potential admission. [63] There were statements made by Mr. Clarke to qualified breath technician Cst. Jennifer Harper. Those statements were captured intheir totality given that the interaction between Mr. Clarke and Cst. Harper was videotaped. Mr.

Clarke made no direct, materialadmissions against his interest during this interview, denying that he had anything to drink, denying he had been in an accident, and, onmore than one occasion, expressing disagreement with the fail to remain charge. Since the Crown wishes to rely on the exchangebetween Mr. Clarke and Cst. Harper, I am required to apply the voluntariness rule. [64] I am going to begin with the operating mind rule because that rule can operate in two ways.

It can lead to the exclusion ofstatements even when there have not been improper inducements or oppressive conduct by police officers (the “pure operating mind”cases, see for example, R. v. Ward (1979), (SCC), 10 C.R. (3d) 289 (S.C.C.)), or evidence of a poorly operating mindcan contribute to an assessment of whether any improper inducements or oppressive conduct caused the subject to speak involuntarily(“inhibited operating mind” cases, see the comments of Iacobucci J. in R. v. Oickle, supra at para. 63, and R. v. Hoilett (1999), (ON CA), 136 C.C.C. (3d) 449 (Ont.C.A.)).

In other words, conducting this inquiry first can provide context for examiningthe voluntariness component of the confession rule. [65] Even though there is ample evidence that during his interactions with others at the Fire Station, Mr. Clarke was a “little bit” outof it, “disoriented” and did not respond in a way that showed orientation to recent events. I am satisfied beyond a reasonable doubt that atthe time he was speaking to Cst. Harper, Mr.

Clarke had an operating mind. [66] The concept of an “operating mind” exists to ensure that subjects have the cognitive capacity necessary to make a meaningful choice to speak to persons in authority. The standard was set out in R. v. Whittle (1994), (SCC), 32 C.R. (4th) 1 at 20(S.C.C.): The operating mind test … requires that the accused possess a limited degree of cognitive ability to understand what he or she is sayingand to comprehend that the evidence may be used in proceedings against [him]….

In determining the requisite capacity to make an activechoice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether theaccused is capable of making a good or wise choice or one that is in his own interest. [67] Video evidence shows that, while Mr. Clarke was slow and sloppy during his time with Cst. Harper, Mr. Clarke understood whathe was saying and comprehended that what he said could be used against him. Cst. Harper cautioned Mr. Clarke more than once. Heresponded that he understood, and I am satisfied he did.

He answered many questions, and did so responsively. He explained whatmedication he was on and why. He initiated discussion about the pulmonary effort needed to furnish samples. He knew that his licencecould be taken from him given what he was being processed for. He explained why he did not want anyone to be called to retrieve himfrom the station. And he debated about whether he would be charged. His comment that he did not know what the fuck was going onwas not an attempt by him to communicate that he was not conscious of what was transpiring. In context, he was clearly protesting that

he could see no reason why he was being subjected to the investigation that was occurring. [68] Based on the videotape of the breath room proceedings, I am also satisfied beyond a reasonable doubt that Cst. Harper didnothing to induce or cause Mr. Clarke to make any statements against his will. [69] The only room for debate relates to the failure by Constables Kennedy and Nitschmann to record their exchange with Mr. Clarke.The absence of an adequate record can raise a reasonable doubt about voluntariness.

As the “derived confession rules” show, I have to becognizant that any improper inducements or oppression can linger and taint a subsequent statement. If there is a reasonable doubt aboutwhether the factors that tainted an earlier statement are still at play when a subsequent statement is made, there will be a reasonabledoubt about the voluntariness of the subsequent statement: R. v. I.(R). and T.(E.), [1994] 4 S.C.R. 504. In effect, the shoddy record left byConstables Kennedy and Nistchmann had the potential to jeopardize the admissibility of statements made to Cst.

Harper, even thoughCst, Harper acquitted herself properly. [70] Having considered this possibility, I am nonetheless satisfied that regardless of what may have transpired during the earlierinterview, Mr. Clarke was not suffering from ongoing pressure to speak involuntarily to Cst. Harper. There was no reference when Cst.Harper was speaking to Mr. Clarke about anything Mr. Clarke may have said earlier, so this is not a case where a prior admission wasused to pave the way for a subsequent repetition. Nor is there any realistic concern about any lingering pressure.

To view the video is tosee an assertive man who was not in the least cowed by where he was or what was happening. Whatever the conversation with Csts.Kenedy and Nitschmann may have been, or what would have occurred during their meeting, I am satisfied beyond a reasonable doubtthat any statements made by Mr. Clarke were voluntary. I therefore find that the statements made by Mr. Clarke to Cst. Harper are notinadmissible because of the confession rule. [71] Counsel for Mr. Clarke argues, however, that it is not only Constables Nitschmann, Kennedy and Harper who are persons inauthority.

He claims that so too are Chief Burks and Paramedic Downey, and that accordingly any statements made to these persons mustbe proved voluntary beyond a reasonable doubt. There are, indeed, times when the confession rule applies to lay persons. This is becausethe “person in authority” concept includes persons who are not actually in authority but “who the accused reasonably believes are actingon behalf of the police or prosecution and could therefore influence or control the proceedings against him or her”: R. v.

Hodgson, supraat para. 48. [72] As this extended definition of persons in authority makes plain, when it comes to the voluntariness component of the confessionrule, the test for identifying whether someone is a person in authority has a “subjective” component. The status of a “person in authority”depends on what the accused subject reasonably believes. Indeed, even if as an objective fact a person “is someone [actually] engaged inthe arrest, detention, examination or prosecution of the accused,” the confession rule does not apply unless the accused knows this to beso: R. v.

Grandinetti 2005 SCC 5 , [2005] 1 S.C.R. 27 at paras 38 and 42. The theory is that if the accused subject knows thatthe person they are speaking to is involved in processing a criminal allegation, the accused subject is more apt to be intimidated, andspeak when they do not wish to do so. If the accused subject does not know they are dealing with a person in authority, as in the case ofan undercover officer, the voluntariness rule does not apply: R. v. Rothman (SCC), [1981] 1 S.C.R. 640. [73] The case law is pragmatic when it comes to the subjective component.

If it would have been obvious to the accused that theperson was engaged in the arrest, detention, examination or prosecution of the case, such as a uniformed police officer, it can be assumedthat this belief was held.

In such cases, the Court is duty bound to exclude statements made to such persons unless the Crown proves,beyond a reasonable doubt, that the person in authority did nothing to cause the accused to speak involuntarily. [74] Where it would not have been obvious to the accused that the person was engaged in the arrest, detection, examination orprosecution of the case, however, the court should simply admit the statement unless the accused points to some basis in the evidence forthinking that the accused may reasonably have believed the person they were speaking to could influence or control the proceedings.

Ifsuch basis exists, the court must exclude the statement unless the Crown proves beyond a reasonable doubt either that the accused did notreasonably believe the recipient of the statement to be in authority, or that the statement was voluntary in any event: R. v. Hodgson, supraat para. 48. [75] Case law has assumed that a similar approach is taken to identifying persons in authority when the operating mind rule is underconsideration, but it has not grappled with the issue.

In my view, when it comes to the operating mind rule, someone is a person inauthority if this is objectively true, whether the accused knows it to be so. It seems self-defeating to premise the protection of theoperating mind component of the confession rule on the requirement that the accused’s mind is operating well enough for them to reasonthat they are speaking to a person in authority.

Moreover the operating mind component of the confession rule is not based on theoriesabout the sense of resignation to authority that an accused person might experience when dealing with those who have power over theinvestigation. The idea behind this component of the confession rule is that the accused is in no position to make an integral choicewhether to speak to those in authority. One would think that this is particularly true of those whose mental process is so stilted that they

do not even know they are speaking to persons in authority. I am therefore proceeding on the footing that a person is in authority for thepurposes of the operating mind component of the voluntariness rule, if they are in fact engaged in the arrest, detention, examination orprosecution of the case, even if the accused has no knowledge of this. [76] I will begin by examining the status of the relevant civilian witnesses objectively. Although counsel for Mr. Clarke did not relyon this argument, I want to note for the sake of completeness that the status of Chief Burks and Captain Grant as Mr.

Clark’s superiorofficers in the fire-fighting hierarchy does not make them “persons in authority” in the relevant sense. Nor does Paramedic Downey’srole as a medical officer tending to Mr. Clarke as her patient make her a “person in authority” for the purposes of the confession rule.Only status that furnishes power to influence or control criminal proceedings will do. None of these players have positions that carry suchauthority. [77] Counsel for Mr. Clarke urged, however, that Chief Burks became a police agent, and therefore objectively a person in authority,once he was directed by the police to detain Mr.

Clarke. He also urged that Paramedic Downey became a person in authority when shewas called upon by police agent Chief Burks to continue that detention, and when she was co-opted by him to examine Mr. Clarke to seeif Mr. Clarke was intoxicated. I cannot accept these arguments. [78] The test for determining whether an individual is a police agent inquires whether they would have acted in the form and mannerthat they did but for the involvement of a state agent: R. v. M.(M.R.) (1998), (SCC), 129 C.C.C.(3d) 361 at 376(S.C.C.). As indicated I am not persuaded that Chief Burks detained Mr.

Clarke because of police instructions. Chief Burks had alreadydecided, even before speaking to the police, to keep Mr. Clarke under supervision because of concerns about Mr. Clarke’s well-being. Iaccept that his request to Captain Grant to keep Mr. Clarke at the Fire Station was not a police matter. Chief Burks wanted him kept untilhe was satisfied that Mr. Clarke was healthy, something that was not established until Cst. Nitschmann had already arrived. Objectively,Chief Burks was not a person in authority, even after he was told by the police to keep Mr.

Clarke there. [79] As for Paramedic Downey, she testified that she did not even know the police were involved until after she examined Mr. Clarke.While I accept that she was told by Chief Burks that Mr. Clarke may have been drinking, her purpose in examining Mr. Clarke was to tryto find out whether there was a medical explanation for his condition, hence the diabetes test, and the Glasco Coma evaluation. She wasnot, on any objective measure, a “person in authority.” [80] Nor is this a case where any of the relevant civilian witnesses must be treated as persons in authority based on Mr. Clarke’sreasonable belief.

Since this is not a case where it would have been obvious that Chief Burks or Paramedic Downey were police agents,if Mr. Clarke wants to rely on the voluntariness rule he must identify some evidentiary basis raising the question of whether henonetheless reasonably believed that they were persons in authority. [81] Counsel for Mr. Clarke urges that this foundation exists because Mr. Clarke would have known that Chief Burks, Captain Grantand Paramedic Downey had assumed control over him, and because Chief Burks was actually investigating Mr.

Clarke’s sobriety, andhis involvement in the motor vehicle accident. [82] Dealing first with assumption of control point, only Chief Burks and Captain Grant assumed control over Mr. Clarke’smovements. Paramedic Downey did not. She simply conducted a medical examination with Mr. Clarke, during which he clearly co-operated. With respect to Chief Burks and Captain Grant, it is important to bear in mind that the legal question is not whether there is anevidentiary foundation for inferring that Mr. Clarke may reasonably have believed that others were exerting control over him.

Thematerial question in the present context is whether there is an evidentiary foundation for inferring that Mr. Clarke may reasonably havebelieved that this control was being exercised by persons who could exercise control over the investigation or prosecution of the offence. [83] Mr. Clarke knew Chief Burks and Captain Grant. They were his colleagues, and their presence at the Fire Hall was not unusual.On the factual record before me, Mr.

Clarke was being kept under watch by persons he knew as his colleagues and he was asked a rangeof health related questions by his colleagues and a medical professional, all who were seeking to understand why he was in difficulty.Her questions about his alcohol consumption were of obvious relevance to that. On the evidence before me, the only reasonablesuspicion Mr.

Clarke could have had at the time was that these persons were concerned about his wellbeing, not that they might be ableto exercise control over a criminal investigation or prosecution against him. [84] The fact that Chief Burks did take measures to investigate whether Mr. Clarke could have been involved in the McGee Side Roadaccident does not, in the circumstances of this case, change Mr. Clarke’s perspective. There is no evidence that he, or anyone else,confronted Mr. Clarke about the accident. Chief Burks denied having done so, and even when he seized Mr. Clarke’s keys, he did notshare his suspicion.

He told Mr. Clarke that he was taking his keys for safekeeping. There is no evidence that Captain Grant confronted

him about the damage to the car, and Paramedic Downey had no idea what the incident on McGee Side Road was. Nor is there any evidence before me that Mr. Clarke was made aware that the police had been called or were involved. Chief Grant left the watch room before calling the police. There is no reasonable foundation on the evidence before me that Mr.

Clarke believed he was dealing with persons who could exercise control over his conduct, or its prosecution. [ 85 ] Even if this foundation had been sufficient to trigger the Crown onus to disprove that these persons were persons in authority beyond a reasonable doubt, I am persuaded beyond a reasonable doubt that Mr. Clarke did not believe he was speaking to persons in authority in the material sense, when he spoke to Chief Burks, Captain Grant and Lorraine Downey. [ 86 ] Accordingly, the statements attributed to Mr.

Clarke by Chief Burks, Captain Grant and Paramedic Downey cannot be excluded based on the confession rule. These persons were not, objectively, persons in authority, therefore the operating mind rule does not operate. Any concerns I have about the functioning of Mr. Clarke’s mind go to the weight I give such statements, not to their admissibility. Mr. Clarke did not believe that any of these persons had any control over the investigation and prosecution of criminal proceedings against him. This nullifies the application of the voluntariness rule. I will go further.

Even had that rule applied, there is nothing in the conduct of any of these individuals that could raise a reasonable doubt about whether Mr. Clarke’s statements were voluntarily. IV. Ruling on the Charter Challenges [ 87 ] Chief Burks detained Mr. Clarke personally, and he directed Captain Grant to continue the detention. Not surprisingly, neither man advised Mr. Clarke of his right to counsel. During that period both men questioned Mr. Clarke. Captain Grant also seized Mr. Clarke’s car keys and Paramedic Downey searched him, at least in the colloquial sense, by conducting a medical examination. Mr.

Clarke has objected that this conduct breached his Charter rights by detaining him improperly, by denying him the right to counsel, and by searching him and seizing his keys unreasonably. I am rejecting these complaints. I am satisfied that the Charter was not engaged by these acts. Private individuals cannot breach the Charter unless they have assumed the role of state agents, and, as already indicated, none of these people acted in the form and manner that they did because of the involvement of a state agent: R. v. M.(M.R.) , supra .

They were acting in their personal capacity. [ 88 ] There being no Charter breaches committed by Chief Burks, Captain Grant, and Paramedic Downey, all of the observations made by them, and all of the statements made to them by Mr. Clarke, which I accept as having been made, are admissible in Mr. Clarke’s trial. Specifically: • To Chief Burks o Mr. Clark said he did not know where he was o On more than one occasion Mr. Clarke told Chief Burks that he wanted to go • To Captain Grant o Mr. Clarke was not sure what had happened o Mr.

Clarke said that he had a couple of beers while at home installing windows that day. (I accept this evidence even though this statement was not recorded in Captain Grant’s statement. Captain Grant said he was sure this was said. He just had not been asked about it. He also explained that the statement was between him and Mr. Clarke. I think Captain Grant chose not to volunteer it to the police at the time, for that reason.) • To Paramedic Downey o Mr. Clarke said he had a history of hypertension and anxiety o Mr.

Clarke said that the was drinking Blue beer “last night” but had not consumed drugs or alcohol “today” o Mr. Clarke said he did not know how he had hurt his lip o Mr. Clarke said that he drove his truck to the station and it was parked out back o Mr. Clarke asked Paramedic Downey if he could leave

[89] I do find, however, that there were Charter breaches committed by Cst. Kennedy, breaches that began immediately upon Mr.Clarke’s detention. [90] Mr. Clarke was detained from the time Cst. Kennedy “took” Mr. Grant to an interview room in the police station. In arriving atthis decision I am mindful that the case law does not hold someone to be detained simply because a police officer intends to hold themand has de facto control of the person by having the means to restrict their movements.

There must be some act of actual physicalrestraint of the subject, or a demand or direction that the accused is legally obliged to comply with, or reasonably believes they arelegally bound to comply with: R. v. Suberu 2009 SCC 33 , [2009] 2 S.C.R. 460 at para 4. In my view, when a police officerphysically directs another to a location for questioning, that is a demand or direction. I have no doubt given the dynamics that Mr. Clarkereasonably believed that he had no option but to comply.

He was therefore under psychological detention, if not physical detention. [91] To underscore the point, once they were in the room, Cst. Kennedy immediately read Mr. Clarke a caution from the “Cautionunder Detention”

section of his notebook. Not surprisingly, Cst. Kennedy acknowledged in cross-examination that he had detained Mr.Clarke at that point. [92] The detention of an individual triggers important Charter rights. First, under

section 10(a), the officer must inform the subject ofthe reason for detention. Second, the officer must respect both the “informational” and “implementational” components of the right tocounsel under

section 10(b). [93] Counsel for Mr. Clarke urges that

section 10(a), the right to be advised of the reason for detention, was violated. Whether section10(

a) is complied with is a matter of substance. No specific words need to be used, nor does the language of the legislation creating thecrimes being investigated have to be tracked: When considering whether there has been a breach of s.10(

a) of the Charter, it is the substance of what the accused can reasonably besupposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what theaccused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision todecline to submit to arrest, or alternatively, to undermine his right to counsel under s,10(b): R. v. Evans (SCC), [1991] 1S.C.R. 869 at para. 35. [94] The reference to “undermin[ing the] right to counsel under

section 10(b)” in this passage is important. An individual can obtainmeaningful legal advice only if they can communicate to their lawyer what it is they are being investigated for. For this reason, if asubject is being investigated for more than one offence, they are entitled to be made aware of that. If they are not, a

section 10(a)violation will have occurred: R. v. Borden (SCC), [1994] 3 S.C.R. 145. [95] Counsel for Mr. Clarke urges that

section 10(

a) was breached in three ways. First, he argues that Mr. Clarke was misled aboutthe real grounds for his detention by being cautioned for “failing to remain.” There is no offence of “failing to remain” in the CriminalCode. That term best describes a separate, less serious highway traffic offence. The argument is that since this was a criminalinvestigation, Mr. Clarke should have been advised that his detention was for “failing to stop.” [96] I reject this argument. The issue is what Mr. Clarke would reasonably have understood. This semantic argument presupposes thatMr.

Clarke probably would have recognized the nuanced difference in the name ascribed to the two offences and assume this was merelya highway matter. This is unrealistic. The very fact he was detained and brought into a meeting room by two officers who cautioned himabout leaving the scene of an accident would have made clear that this investigation was serious. If this was the only argument I wouldreject the

section 10(

a) breach application. [97] I do, however, accept the second

section 10(

a) argument. Mr. Clarke was, in fact, being detained to facilitate an investigation intohis sobriety when involved in a serious motor vehicle accident in which an injury had occurred. Yet at no time was he told this. He wastold only that he was detained in connection with an undescribed hit and run. Of course, he would have known after the roadside breathtest demand was made that his sobriety was in issue, but that was at least five minutes into his detention.

More importantly, he wasnever advised that he was being investigated for injuring another during an alcohol driving offence, a central fact in being able toidentify the degree of his jeopardy. Mr. Clarke was not informed promptly of the reasons for his detention, and was never advised of theentire reason. His

section 10(

a) rights were therefore violated. [98] As indicated, the importance of being fully informed is so that detained persons can decide whether they must lawfully submit tothe detention, and to arm them with the necessary information to secure appropriate legal advice. As the Supreme Court of Canadaexplained in R. v. Sinclair at 2010 SCC 35 , [2010] 2 S.C.R. 310 at para 51: The advice given will be tailored to the situation as the detainee and his lawyer then understand it.

If the investigation takes on a newand more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. [99] Cst. Kennedy exacerbated what otherwise may have been an inconsequential failure to comply with

section 10(

a) when, at thestation, he gave Mr. Clarke’s counsel misleading information about why Mr. Clarke had been detained. He told Mr. Clarke’s counselthat Mr. Clarke had been arrested for “over 80,” even though Cst. Kennedy was well aware, as evidenced from the grounds for arrest hegave to Cst. Harper, that Mr.

Clarke was being investigated for alcohol driving offences causing bodily harm, and for failing to stop afterbeing involved in an accident. [100] Of course, police officers are not under a legal obligation to inform defence lawyers of the reasons for their client’s detention.Their obligation is to inform the person detained. Where a police officer chooses to explain to the accused’s lawyer what the grounds fordetention are, however, that information must be accurate.

Since the provision of misleading information about the reason for detentionto counsel undermines meaningful legal advice, providing misleading information to the lawyer, an agent for the accused, relating towhy the accused is detained, is a breach, in my view, of both sections 10(

a) and 10(b). [101] There were still other breaches of Mr. Clarke’s

section 10(

b) rights. First, Mr. Clarke’s “informational” right to counsel was breached. Specifically, Mr. Clarke was entitled, upon detention, to be informed of his right to

counsel “without delay,” or “immediately”: R. v. Suberu, supra at para. 41. This did not happen. Mr. Clarke was not advised of his rightto counsel until 6:19 p.m., some ten minutes or more after his initial detention. [102] Cst. Kennedy attempted to justify the delay by testifying that Mr. Clarke was uncooperative and so he waited until Mr. Clarkewas secured in the police car before making that demand. I do not accept this claim. Initially Cst. Kennedy was unsure of where Mr.Clarke was when his rights were read. It was only after Cst.

Kennedy suggested that this could have happened in the police car that hebuilt this into an officer safety exercise. The only thing that Cst. Kennedy could cite when first pressed on what made Mr. Clarkeuncooperative was that Mr. Clarke would not answer questions. Leaving aside that it was Mr. Clarke’s legal right not to do so, the failureto answer questions is hardly the kind of non-cooperation that would require a delay in the right to counsel until the subject was in a moresecure surrounding. Later, when pressed further, Cst. Kennedy claimed that Mr. Clarke had been abusive with him.

It is difficult toverify whether this is so because neither Cst. Kennedy nor Cst. Nitschmann took any notes of what was said. But one thing is clear. Cst.Kennedy had been able to process Mr. Clarke, without material incident, in the meeting room for some time, including interviewing himand administering a roadside breath test. I am persuaded that, to his discredit, Cst. Kennedy manufactured the non-co-operation excuse asa knee-jerk defence when he was challenged about his failure to give Mr. Clarke his right to counsel without delay. [103] Moreover, Mr.

Clarke’s implementational right to counsel was breached in two ways. First, when an individual is detained theyhave the right to consult counsel without delay. Cst. Kennedy agreed that there was a telephone available at the Fire Station, and themeans to give Mr. Clarke privacy, so he could contact counsel. Cst. Kennedy offered no explanation for failing to permit this to occur. [104] Moreover, when an individual is detained the police are not to attempt to use them as a source of information until they have hada reasonable opportunity to actually contact counsel: R. v.

Manninen (1987), (SCC), 58 C.R. (3d) 97 (S.C.C.). Mr.Clarke’s implementational right was therefore also breached when Constables Kennedy and Nitschmann immediately attempted tointerview Mr. Clarke immediately upon his detention, before he had a reasonable opportunity to contact counsel. [105] Counsel for Mr. Clarke also argued that, in addition to these breaches, sections 8 and 9 of the Charter were breached because Cst.Kennedy did not have adequate grounds to detain Mr. Clarke so that he could furnish a screening device sample, making the seizure ofthat sample unreasonable.

Specifically, the complaint is that Cst. Kennedy had no information about when the accident had actuallyoccurred. Section 254(2) permits a roadside screening sample to be demanded only if the officer reasonably suspects that in the prior 3hours the accused has operated a motor vehicle with alcohol in his body. Counsel for Mr. Clarke urged that when he made the demand at6:13 p.m. or so, Cst. Kennedy could not reasonably have suspected that Mr. Clarke operated a motor vehicle in the past 3 hours, as allCst. Kenney had was his dispatch time for the accident of 4:23 p.m.. [106] During cross-examination, Cst.

Kennedy agreed with the suggestion that he only had in his mind that it was a “possibility” thatMr. Clarke had been operating the motor vehicle in the preceding three hours. Counsel for Mr. Clarke urges that a “possibility” is not a“reasonable suspicion.” [107] I am satisfied that there was no breach of Mr. Clarke’s

section 8 and 9 rights. Contrary to the defence position, a reasonable beliefin a possibility is enough to ground a reasonable suspicion. Indeed, in this context, suspicion and possibility are used interchangeably inthe authority. Justice Binnie said in R. v. Kang-Brown 2008 SCC 18 at para 75, “Suspicion” is an expectation that the targeted individualis possibly engaged in some criminal activity.” In R. v. Chehil 2013 SCC 49 at para 28 the Court said explicitly that “reasonablesuspicion deals with possibilities, not probabilities.” [108] Moreover, Cst. Kennedy’s belief that it was possible that Mr.

Clarke had alcohol in his body while operating a motor vehicle inthe past three hours was “reasonable.” Reasonable suspicion is a low test, appropriate to the diminished expectation of privacy that existswhere this standard is constitutionally acceptable. To meet this standard the suspected fact need not be the only possible fact capable ofbeing inferred from the information relied upon: R. v. Chehil 2013 SCC 49 at para 32. It is enough if it is one of the reasonably possiblefacts. This does not invite officers to act based on the general theory that anything is possible.

Whether it is “reasonable” for an officer tosuspect a fact is to be considered on the “objectively discernible facts” relied upon by the officer, evaluated in a “flexible [manner]grounded in common sense and practical, everyday experience”: R. v. Chehil, supra at para. 29. [109] In this case Cst. Kennedy knew that the police dispatch to the accident occurred at 4:23 p.m., some 1 hour and 50 minutes beforehe made the roadside demand to Mr. Clarke. It was not unreasonable for Cst. Kennedy to infer that the accident likely did not happenmore than an hour before the police dispatch.

While the horrific possibility that someone could lay undiscovered on the side of McGeeSide Road for that long exists, based on practical everyday experience that would be an unusual and shocking outcome. I have no doubtthat Cst. Kennedy’s suspicion that the accident had occurred within the prior 3 hours was reasonable. [110] I therefore find that Mr. Clarke’s arrest was not arbitrary, and that the search for Mr. Clarke’s breath through the roadsidedemand was not unreasonable. When it came to the detention of Mr. Clarke, however, the way this detention was conducted was averitable clinic on how not to do it. Mr.

Clarke’s

section 10(

a) right was violated when he was not given a sufficiently completeexplanation for his detention, and when his lawyer was misled as to why he was being detained. Mr. Clarke’s 10(

b) rights were breachedby not immediately advising him of his right to counsel, when he was not given the opportunity to consult counsel without delay, andagain when he was questioned before he had the reasonable opportunity to enjoy his right to counsel. [111] Because of these breaches, Mr. Clarke has applied for exclusion of evidence under subsection 24(2).

Specifically, of thestatements made by him, the observations made by the police during his detention, and his blood alcohol readings. [112] I am satisfied on the balance of probabilities that the first prerequisite to exclusion under section 24(2) has been met. All of thistargeted evidence was “obtained in a manner” that violated Mr. Clarke’s Charter rights. Specifically, the evidence sought to be excludedwas secured during the detention that Mr.

Clarke had not properly been informed of the reasons for, and, given the misrepresentation tocounsel of the reason for his arrest, without the full benefit of effective consultation with counsel that Mr. Clarke was entitled to. [113] The critical question relates to the second exclusionary prerequisite, namely, whether Mr. Clarke has demonstrated on the balanceof probabilities that, in all of the circumstances, the admission of the evidence in the proceeding would bring the administration of justiceinto disrepute. The principles that govern that determination were set out in R. v.

Grant 2009 SCC 32, and involved the examination of

the seriousness of the violation, the impact of the violation on the Charter protected interests of the accused, and the negative impactexclusion would have on the reputation of the administration of justice. [114] The first Grant factor, “the seriousness of the Charter breach,” is about the “gravity of the state conduct”: R. v. Grant at para. 73.It turns primarily on the behaviour of the police officers who breached the right.

In making this assessment courts consider theblameworthiness of the conduct, its degree of departure from Charter standards, and the presence or absence of extenuatingcircumstances. [115] Using this calculus, in their totality the breaches were serious. This is because, for the most part, the Charter rights breached byCst. Kennedy were basic, and there were no extenuating circumstances. The failure to respect these rights was the product either ofunacceptable ignorance about what the Charter requires, or reckless disregard for those rights.

In my view, this approaches the moreserious end of the breach spectrum. [116] Moreover, there were five, albeit related, Charter breaches. Multiple breaches can increase the seriousness of the violationsbecause it typically, as here, betrays an unacceptable attitude about Charter compliance: R. v. Chiasson (2006), 2006 SCC 10 , 37 C.R. (6th) 43 (S.C.C.). [117] In coming to this conclusion I do accept that Cst. Kennedy thought he only had to tell Mr. Clarke’s lawyer about the offences forwhich Mr. Clarke was arrested and that there were reasonable grounds to believe occurred. On this issue, Cst.

Kennedy thought he wasdoing the right thing. This breach is still disturbing, and not simply because Cst. Kennedy inexplicably failed to see that he in fact hadample objective evidence to arrest Mr. Clarke for each of the offences he is now begin prosecuted for. This breach is disturbing becauseif Cst. Kennedy had thought at all about the purpose of the relevant Charter rights, common sense alone should have alerted him that thelawyer needs to know what is at stake during the detention so that meaningful advice can be given. [118] I am also prepared to accept that Cst. Kennedy’s failure to know enough to let Mr.

Clarke call counsel from the Fire Station,where this could have been accomplished, is an error that many officers might have made. It is the norm to bring subjects to the policestation before they exercise their right to counsel, and this habit may have caused Cst. Kennedy to proceed by rote rather than reason. [119] It is the other breaches that push this case toward the serious end of the spectrum. It was unreasonable, given the settled state ofauthority, for Cst. Kennedy to fail to know that full and accurate reasons for detention have to be given to a subject.

Even more basic,however, is the obligation to advise a detained subject of their right to counsel, and the need to hold off using them as a source ofinformation until they have had a reasonable opportunity to do so. It is Cst. Kennedy’s failure to respect these foundational rights thatreflects either unacceptable ignorance or reckless disregard. [120] In all of the circumstances the breaches were serious, agitating in favour of the exclusion of the evidence. [121] What, then, of the extent to which these breaches intruded upon the Charter protected interests of Mr.

Clarke, the secondexclusionary inquiry under the Grant test? The degree of intrusiveness of Charter breaches is to be measured, not only by the nature ofthe conduct of the officers, but also by the nature of the evidence secured. This is because different forms of evidence are secured withdifferent degrees of intrusion. It is therefore helpful to look more generally at the degree of departure of officer conduct, and thenspecifically at the impact that securing the specific items of evidence had on Mr.

Clarke’s Charter protected interests. [122] In this case there was a significant degree of departure between what was done, and what should have occurred in light of Mr.Clarke’s Charter protected interests. Because of the

section 10(

a) breach, Mr. Clarke was left without complete information about whatwas occurring, when he was entitled to know why he was being detained. The

section 10(

b) informational breach left him without theassurance of knowing that he could consult counsel when he was being investigated in the meeting room. In fact, in the circumstances ofthis case, he should have been given a chance to call counsel when first detained, but was not. Then, instead of holding off attempts touse Mr. Clarke as a source of evidence until he was given a reasonable chance to speak to counsel, he was questioned about the offence.When Mr.

Clarke was ultimately given the right to consult counsel, he was not armed with adequate information to enjoy that rightmeaningfully. [123] Beyond this, the impact of the breaches on Mr. Clarke’s Charter protected interests varies between the different species ofevidence sought to be excluded. I will begin with “statements.” [124] Statements are “prima facie” inadmissible if obtained in violation of the Charter: R. v. Grant, supra para. 92. This is because theright to silence is of fundamental importance in protecting liberty.

A Charter breach that compromises that right is inherently intrusive. [125] In this case, the Crown is not offering any statements made to Constables Kennedy and Nitschmann. They are, however, relyingon the conversations that Mr. Clarke had with Cst. Harper, evidently because while Mr. Clarke does not make any self-incriminatingadmissions to Cst. Harper, the kinds of things he says and the manner in which he says them furnish circumstantial evidence ofintoxication. As a result of the Charter breaches Mr.

Clarke made those statements without the benefit of effective legal advice, which isa significant impact on this Charter protected right. [126] Counsel for Mr. Clarke is also seeking the exclusion of the blood alcohol readings secured from Mr. Clarke. The Crown urgesthat the unconstitutional obtainment of breath samples is not intrusive of the Charter protected interests of the accused. It relies on R. v.Grant, supra, para 11 [127] I do not believe this is a proper reading of R. v. Grant, supra.

I do not read the decision as purporting to provide a comprehensivecatalogue of all “breach impact considerations” in alcohol driving cases. Justice Charron commented that a breath sample is a relativelynon-egregious intrusion into the privacy and bodily dignity of individuals, which is true, insofar as it goes.

The general inquiry, however,is into the impact of the breach on Charter protected interests, including but not confined to privacy and bodily dignity considerations.Depending on the breach there are other Charter protected interests that may be implicated, such as the arrest, handcuffing and detentionof individuals who are brought for blood alcohol testing. I therefore endorse the approach in R. v. Au-Yeung 2010 ONSC 2292, paras 57-62, which permits judges to look at the real consequences that flow from a breach, always bearing in mind that the test itself is

unobtrusive of privacy interests and the dignity of the offender. [ 128 ] In this case, because of the

section 10(

a) breaches identified, Mr. Clarke was made to furnish samples of his breath without fully enjoying his right to counsel. Given that we are not to speculate about what legal advice Mr. Clarke would have received, it cannot be assured that if he had full information, that those breath samples would have been forthcoming. The impact on the Charter protected rights of depriving someone of the effective right to counsel before securing a breath sample from them is, in the circumstances of this case, a significant one. [ 129 ] Counsel for Mr.

Clarke is also seeking the exclusion of observations made by the police officers of Mr. Clarke’s state of sobriety, after his Charter rights were breached. It is important to remember that at this stage the pertinent inquiry is into the impact that the Charter breaches had on his Charter protected interest related to this evidence. This involves assessing whether the Charter breach was the means by which the evidence was discovered, and whether the loss of the Charter protected interest caused or contributed to that discovery.

With respect to the latter point – causation - the law holds that where it can be determined “with confidence” that the target evidence would have been found, this is a non-determinative but relevant factor in identifying the intrusiveness of Charter breaches: R. v. Nolet 2010 SCC 24 at para. 54 ; R. v. Cote 2011 SCC 46 at para. 70 .

I find it helpful, in applying these principles, to distinguish between passive observations made without any active engagement of the accused, and those things that can be observed only because of the activity of the accused. [ 130 ] I will begin with the passive observations, in this case, the redness on the rims of his eyes noted by Cst. Nitschmann and the watery eyes observed by Cst. Harper. In my view, the Charter breaches that occurred when this evidence was secured had little, if any, impact on Mr. Clarke’s Charter protected interests.

This is not a case where, by their nature, the breaches enabled these things to be observed, as would have been true had the conditions of Mr. Clarke’s eyes been seen during an arbitrary arrest or detention. These physical characteristics were there to be seen, irrespective of the breaches. [ 131 ] Things are more complicated with the observations linked to the active engagement of Mr. Clarke, specifically the manner in which he spoke, including the slurring observed by Cst. Nitshmann, the apparent disorientation Cst, Kennedy deriving from what Mr.

Clarke’ said, and the abrasive behaviour, confusion and slow speech that can be seen on the breach room video while Mr. Clarke spoke to Cst. Harper. It cannot be assumed that had Mr. Clarke and his lawyer known of his actual jeopardy, Mr. Clarke would have engaged in any discussion. If he had not done so, there would be no speech related observations to offer. The Charter breaches therefore had a material impact on the Charter protected interests of Mr. Clarke related to this evidence. [ 132 ] The smell of alcohol on Mr. Clarke’s breath, observed by Cst.

Kennedy, stands on a different footing, even though it is doubtless that the act of speaking can project odour. Mr. Clarke was lawfully arrested and would have been in close quarters to officers while being processed. In my view, it can be confidently concluded that this smell would have been noted even if Mr. Clarke said nothing. For example, in this case Cst, Harper described that when Mr. Clarke was in the holding cell the smell of alcohol was very strong. The Charter breaches that occurred in this case did not deprive Mr.

Clarke of any Charter protected interests relating to the discovery of the smell of alcohol on Mr. Clarke. [ 133 ] The last Grant factor to be considered is the impact of exclusion on the repute of the administration of justice. This is a cogent and appropriate consideration given that the ultimate question under section 24(2) is whether, given the long-term interests of the administration of justice, the reputation of the administration of justice would be brought into disrepute by admitting the evidence.

It stands to reason that the more important the evidence is, the less likely such disrepute is to occur where a court decides it is simply too costly to society’s interests to exclude the evidence in order to avoid condoning the Charter breach or denigrating the Charter right in question. In judging the importance of the evidence, Courts focus on its reliability and its importance to the Crown’s case. [ 134 ] The nature of the offence is also to be considered, since the societal interest in adjudicating a case on its merits increases with the seriousness of the allegation ( R. v.

Johnson 2013 ONCA 177 at para. 31 ). The majority of the Supreme Court of Canada in Grant , supra at paras 81, 83 -84 (and see R. v. Vu 2013 SCC 60 at para. 73 ) directed courts, however, to recognize that this cuts both ways. The more serious the charge, the greater the interest the accused has in the enjoyment of his Charter rights because the stakes are higher.

Analytically, since the impact of excluding the targeted evidence varies with the kind of proof in question, I will consider the impact of exclusion while balancing the pro-exclusionary factors, proof by proof. [ 135 ] Having balanced the considerations described, I am persuaded that the admission of statements made by Mr. Clarke to Cst. Harper would bring the administration of justice into disrepute. As indicated, unconstitutionally obtained statements are prima facie inadmissible, and these statements were obtained from Mr. Clarke who never properly enjoyed his right to counsel.

This happened because of serious breaches by Cst. Kennedy that impacted upon Mr. Clarke’s Charter protected interests. These statements are not central to the prosecution. It is clear to me that the long-term interests of the administration of justice are best served by exclusion, even in this serious prosecution. [ 136 ] I am of a similar view with respect to the observations of Mr. Clarke’s sobriety that derive from statements he made, including the slurring, disorientation, and the abrasive, confused and slow manner of speech observed by the officers or available to be seen on exhibit 4 when Mr.

Clarke is speaking. I am not excluding this evidence simply because proof of the contents of the statements is being excluded; there is a distinction between excluding self-incriminating admissions made by suspects and excluding factual observations deduced from the way in which the accused person spoke. I am excluding the evidence derived from the manner in which Mr. Clarke spoke because the Charter breaches may have led to Mr. Clarke speaking in the first place, and those breaches are serious, and multiple.

Again, the long-term interests of the administration of justice are best served by exclusion, even in this serious prosecution. [ 137 ] I will not exclude the passive observations made by the police officers about the condition of Mr. Clarke’s eyes. Although the breaches in this case are serious, and the reliability of the inferences that can be drawn from such evidence are far from definitive, this evidence has no meaningful link to the breaches, other than that the observations were made temporally while Mr. Clarke’s unrelated Charter rights were being violated. [ 138 ] The m

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