R. v. Sillars, 2019 ONCJ 58

ONTARIO COURT OF JUSTICE CITATION: R. v. Sillars , 2019 ONCJ 58 DATE: 2019 02 01 COURT FILE No.: Central East Region: Oshawa Courthouse 18-00265-00 BETWEEN: HER MAJESTY THE QUEEN — AND — DAVID SILLARS Before Justice Peter C. West Evidence Heard on October 17, 18, 22, 23, 24, and 26, 2018 November 1, 2, 5, and 6, 2018 Oral Submissions heard on November 19, and 26, 2018; Reasons for Judgment released on February 1, 2019 Mr. F. Giordano................................................................ counsel for the Crown Mr. J. Rosenthal, Mr. Wm.

Thompson..... counsel for the defendant David Sillars WEST J.: Introduction [ 1 ] David Sillars is charged with impaired operation of a vessel causing death; operating a vessel with over 80 mg alcohol/100ml blood causing death; dangerous operation of a vessel causing death and criminal negligence causing death. He seeks exclusion of breath tests results, blood sample analysis, and statements to the police on the grounds his Charter rights were violated and the admission would bring the administration of justice into disrepute. [ 2 ] These are my reasons respecting the defence Charter applications.

It was agreed by both parties that the evidence respecting the Charter applications respecting the admissibility of the breath test results and the blood sample analysis should be by way of a blended hearing. With respect to whether Mr. Sillars’ statements to Sgt. Allison during the breath sample tests were voluntary it was agreed this application would be by way of a separate voir dire during Sgt.

Allison’s evidence, however, the evidence of other officers who had dealings with the defendant could be addressed during their evidence on the trial proper. [ 3 ] Finally, although a separate Garofoli application was not brought by the defence, the issue of the “facial” validity of the warrant and Information to Obtain sworn by Constable MacDonald of the OPP, to seize David Sillars’ hospital records and a sealed blood vial, which were located at the South Muskoka Memorial Hospital, was raised in the Application, Form 1 providing notice under Rule 2.2 Criminal Rules of the Ontario Court of Justice .

The evidence relating to this application was agreed, by the parties, to be heard in the same blended hearing. [ 4 ] Before addressing the various Charter applications by the defence I will first set out the basic facts. Factual Background [ 5 ] On April 7, 2017, David Sillars was spending time at a friend’s cottage on the Muskoka River in Bracebridge, Ontario. He was

at the cottage around 12:30 pm with his friend Jack Kapel relaxing. A friend of Mr. Kapel’s, Michael White, who lived on the river, dropped by for a beer. [ 6 ] Sometime later Mr. Sillars’ girlfriend, Jessica Hooper, arrived at the cottage with her two sons, aged eight and six years of age. [ 7 ] As observed by Mr. Kapel and another friend, Michael White, Mr. Sillars consumed at least one cooler while he was at the cottage and Mr. Sillars was also observed by Mr. Kapel to smoke a marihuana cigarette before anyone else arrived. [ 8 ] At some point in late afternoon, Mr.

Sillars went down the Muskoka River in a canoe with Ms. Hooper’s son, Thomas, aged eight. [ 9 ] The cottage where Mr. Sillars was staying was just east of the Highway 11 Bridge, which goes over the Muskoka River in Bracebridge. High Falls is a short distance west of the Highway 11 Bridge. There is a yellow floating barrier of buoys stretching across the Muskoka River, just before High Falls, floating on the water and warning of the danger associated with the water falls.

The markers have written on them “Dam Ahead – Keep Away.” The markers are there as a warning to boaters to keep away and to catch debris before it clogs up the dam. High Falls can be seen before arriving at this barrier. [ 10 ] The evidence disclosed that the Muskoka River was swollen and very high because of the spring run-off from the winter. The air temperature was 4 or 5 degrees Celsius. The water temperature was described as extremely cold. There was snow and ice still melting on the land around the Muskoka River.

The current was described as extremely fast moving having regard to the water level and the spring run-off. Witnesses described its current as being very strong and one could see swirls of water, which indicated the strength and speed of the current. High Falls was quite turbulent and rocks, which would normally be exposed in later months were not visible because of the increased quantity of water going over the falls. In two of the photographs, Exhibit 8D and 16-12, taken April 8, 2017, pieces of ice can be seen floating in the Muskoka River below the High Falls.

Exhibits 1A and B show the Muskoka River overflowing its normal high water mark by Mr. Kapel’s cottage, where Mr. Sillars out from in the canoe. [ 11 ] At 5:29 pm, dispatch reported to OPP officers patrolling in the area that a man believed to be intoxicated was stumbling around in the live onramp from Highway 117 on to the northbound lanes of Highway 11. [ 12 ] Constables MacDonald and Coles were very close to where the man was stumbling and staggering and they arrived at that location within 30 seconds. It was quickly determined by these officers that Mr.

Sillars was suffering from hypothermia, as he was completely wet, shivering and barely able to talk. EMS was called and the officers attempted to warm him up in the back of their police SUV cruiser. [ 13 ] Mr. Sillars said his friend’s son had been with him in a canoe and they were on the river going to get a blue bucket. He indicated the canoe had tipped or capsized. He did not know where the son was but he was wearing a lifejacket. Constable MacDonald got on his radio and requested other units attend to look for the son. [ 14 ] It was learned the son’s name was Thomas and he was a young boy. Mr.

Sillars told the officers Thomas was wearing a life jacket. Mr. Sillars said he tried to get to Thomas but he was floating away. The defence agreed Mr. Sillars’ utterances to Constables MacDonald and Coles at the roadside and in the police cruiser before his care was transferred to the paramedics were voluntary. [ 15 ] Throughout his dealings with Mr. Sillars at the roadside, Constable MacDonald testified he was only concerned about Mr. Sillars’ well-being and had no intention to investigate him for any criminal offences. There was no plan to go with the ambulance when it arrived to keep watch over Mr.

Sillars. [ 16 ] Once the ambulance arrived Mr. Sillars was placed on a stretcher and his wet clothes were removed and he was wrapped in blankets. The paramedics left with Mr. Sillars for South Muskoka Memorial Hospital. No police officer went in the ambulance or followed the ambulance to the hospital. [ 17 ] In the ambulance, Cameron Perkins, one of the paramedics testified he understood from Mr. Sillars that he had been in a canoe on the river, it had flipped and he was able to get to shore but the other occupant of the canoe was not.

The ambulance arrived at the hospital at 5:51:49 pm and care was transferred to the Emergency staff at 5:54 pm. Again, the defence agreed any utterances by Mr. Sillars made to Cameron Perkins were voluntary. [ 18 ] After Mr. Sillars left in the ambulance Constable MacDonald requested an officer attend the hospital to try to get further information about the young boy, Thomas. PC Maki was assigned this task. [ 19 ] Thomas was located by police officers down river from High Falls around 5:46 pm by PCs Woods and Reading.

PC Reading went into the river to retrieve Thomas, who was vital signs absent when she got him to the shore. CPR was commenced by PC Woods and at 5:52 pm Thomas was transferred into an ambulance, CPR was continued by paramedics and he was brought to South Muskoka Memorial Hospital (SMMH), arriving around 6:15 pm. [ 20 ] Sgt. Allison, who had been on scene by the river, returned to the detachment at 6:08 pm, to check on the two officers who had entered the river to rescue Thomas. He received information while at the detachment that Mr.

Sillars had been consuming alcohol at the cottage he was at, prior to getting in the canoe with Thomas. Sgt. Allison also testified he telephoned Constable MacDonald at the hospital, who advised him Mr. Sillars said he consumed two coolers and this had been confirmed by Thomas’ mother, Jessica Hooper. As a result of this information he brought an approved screening device, a Drager Alcotest 6810 and a blood kit with him when he returned to the hospital. [ 21 ] The hospital chart indicated care for Mr. Sillars was transferred from EMS to the hospital at 5:50 pm. Dr.

Kents was the emergency room doctor and Vicki Smith was the nurse who filled out the nurses notes relating to Mr. Sillars’ care. Dr. Kents estimated she spent about 15 minutes assessing Mr. Sillars shortly after he was put into Trauma Room 2. She described Mr. Sillars as suffering the effects of hypothermia, he was conscious but was uncooperative, agitated and swearing. She observed a strong odour of alcohol coming

from his breath and noted, in her writing, on the hospital chart Mr. Sillars, “smells of alcohol.” Dr. Kents gave instructions to the nurse to get Mr. Sillars warm (his temperature in the ambulance was 31 degrees Celsius and when first in hospital, 33.5 degrees Celsius, both of which were hypothermic temperatures). [ 22 ] Constable MacDonald arrived at the hospital at 6:13 pm. When he got to the emergency area he spoke to PC Rickaby who provided him with Mr. Sillars’ and Thomas’ names. Constables MacDonald and Coles did not go into the trauma room where Mr.

Sillars was being treated by medical staff as Constable MacDonald learned Thomas’ mother, Jessica Hooper, was in a quiet room down the hall from the emergency area with PC Van Norman. He attended with PC Coles and conducted an interview with her. Constables MacDonald and Coles did not note the time they entered the quiet room to interview Jessica Hooper or how long they were conducting the interview. Constable Coles was writing what Ms. Hooper was saying in his notebook.

He described her statement about what happened as being detailed. [ 23 ] At 6:30 pm the nurses’ note indicated an OPP officer went into Trauma Room 2 and spoke to Mr. Sillars. (See Exhibit 13, page 23.) PC Maki testified he was the first police officer in the hospital. He did not note the time he arrived at the hospital but Mr. Sillars was already there. He was unable to speak with Mr.

Sillars for some period of time because the hospital staff were treating and providing care to him, so he “stood by.” He described the hospital emergency area being in a state of “controlled chaos.” In fact, all of the witnesses who were present in the Emergency Department described this area to be chaotic and highly emotional, especially after Thomas arrived. [ 24 ] PC Maki spoke to Mr. Sillars to get further information concerning what happened once Mr. Sillars was sufficiently warmed up and was able to speak and communicate.

PC Maki could not recall the exact questions he asked but he was basically asking what had happened. Mr. Sillars said he was paddling a canoe to get a blue barrel that he had seen. He said “it was stupid, it was stupid” that he took Thomas, a child with him, to get the blue barrel and that the canoe flipped over. He indicated he was able to swim to the shore but Thomas wasn’t able to. PC Maki remembered Mr. Sillars indicating that Thomas was yelling for help but he couldn’t help him and that he saw Thomas get taken further down the stream. Mr. Sillars told PC Maki he believed he may have blacked out.

He didn’t know how long he was in the water or how long he was out of the water. The defence agreed Mr. Sillars utterances to PC Maki were voluntary. [ 25 ] PC Maki did not note the time he arrived at the hospital. It could have been 10 to 15 minutes after he arrived that he was able to speak to Mr. Sillars but he did not know the time when he began to speak to Mr. Sillars. It is my view PC Maki was the OPP officer reflected in the nurses’ notes who went into Trauma Room 2 and spoke with Mr. Sillars at 6:30 pm. [ 26 ] Dr. Kents testified she ordered a trauma blood panel to be drawn from Mr.

Sillars after completing her assessment of him. The hospital records, computer printout from the laboratory, showed Dr. Kents order was made at 6:35 pm, although this was also reflected in the nurses’ notes as occurring at 6:30 pm. (See Exhibit 13, page 23.) [ 27 ] At 6:38 pm, Sgt. Allison testified he returned to SMMH to investigate Mr. Sillars respecting possible impaired operation of a vessel. This time was noted on his Alcohol Influence Report. [ 28 ] At some point when Constables MacDonald and Coles were interviewing Jessica Hooper, Sgt. Allison interrupted the interview and asked to speak to both officers.

None of the three officers noted the time this meeting and discussion took place. Constable MacDonald told Sgt. Allison that Ms. Hooper told him Mr. Sillars had two coolers at the cottage. Constable MacDonald also had a note that Sgt. Allison “advised of the consumption of alcohol by Sillars.” He believed Sgt. Allison was telling them he had learned this information earlier. Constable MacDonald recalled advising Sgt. Allison of the information they had learned from Ms. Hooper, including the information Mr.

Sillars and Thomas had set out in the canoe to go to the barrier at 4:45 pm. [ 29 ] The evidence also disclosed that Sgt. Allison asked Constable Coles to go to his police car and retrieve the OPP Blackberry, which PC Coles did. There were no times noted in either Sgt. Allison’s or PC Coles’ notes to indicate when this occurred. PC Coles got the cell phone and brought it back and gave it to Sgt. Allison. PC MacDonald testified he was unaware and was not involved in Sgt. Allison’s request of PC Coles. [ 30 ] At 6:45 pm, either the nurse, Vicki Smith or the technician drew blood from Mr. Sillars as per Dr.

Kents’ order for a trauma blood panel. This is reflected in the nurses’ notes, Exhibit 13. Sgt. Allison testified he was outside trauma room 2 when hospital staff came out of Mr. Sillars’ room with a cart and blood vials on it. He believed blood had been drawn by the hospital from Mr. Sillars, although he did not see the blood being drawn. Vicki Smith testified the OPP entered Trauma Room 2 at 6:50 pm, which was after the blood was drawn from Mr. Sillars at 6:45 pm. Further, around the same time a urine sample was obtained from Mr.

Sillars (Hospital records indicate 6:41 pm), which was sent to the lab for a drug screen analysis by order of Dr. Kents. [ 31 ] At 6:48 pm, Sgt. Allison did a self-test with the ASD he brought to the hospital to determine if it was in proper working order. His sample of breath registered a zero and he believed it was working properly. No one asked where Sgt. Allison did the self-test with the ASD. On the evidence it is my view this occurred in the general area of the emergency. Sgt. Allison entered Trauma Room 2 to speak to Mr. Sillars. [ 32 ] The nurses’ note indicated “OPP in to speak to pt,” Mr.

Sillars, at 6:50 pm. When Sgt. Allison entered the room he did not explain to Mr. Sillars why he was there or what he was investigating. When he first entered the room he could not smell any odour of alcohol, so he asked Mr. Sillars to blow across his face. When Mr. Sillars did this Sgt. Allison observed there was a slight odour of alcohol on Mr. Sillars’ breath. Sgt. Allison did not tell Mr. Sillars why he asked him to do this. He then asked Mr. Sillars if he had anything to drink and Mr. Sillars responded, “Two coolers.” Sgt. Allison did not advise Mr.

Sillars of his right to counsel before asking him to blow across his face or asking what he had to drink. At some point Sgt. Allison testified he said to Mr. Sillars, “We’re the police. We have to do our job here.” He testified he said this to Mr. Sillars at the same time he asked Mr. Sillars to blow across his face. [ 33 ] As a result of smelling the slight odour of alcohol and Mr. Sillars’ admission that he had two coolers, Sgt Allison testified he formed a reasonable suspicion Mr. Sillars had alcohol in his body within three hours of operating a vessel and he made a demand that Mr.

Sillars provide a sample of his breath into an approved screening device. Sgt. Allison had noted the ASD demand was made at 6:50 am. Sgt. Sillars read the approved screening device demand to Mr. Sillars from a pre-printed card:

I demand that you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made, and that you accompany me for this purpose of taking a sample. Do you understand? [ 34 ] Mr. Sillars responded, “Just wait.” Then he said, “I’m cold” and “Won’t this get me in trouble?” Sgt. Allison believed Mr. Sillars was concerned about giving a sample. He advised Mr.

Sillars it was a legal demand and explained the consequences for failing to provide a sample of his breath. [ 35 ] Constable MacDonald testified he and PC Coles were standing outside in the general part of the emergency area, outside Trauma Room 2 when Sgt. Allison came out of Trauma Room 2 and asked them to attend at the lab to see if there was any extra blood that could be sealed, as Mr. Sillars was not being cooperative respecting his providing a breath sample pursuant to the ASD demand. Neither Constables MacDonald nor Coles made a note of the time this request was made by Sgt.

Allison. [ 36 ] In cross-examination Sgt. Allison testified when he was at the detachment and was on the phone with Constable MacDonald he talked to him about the possibility of sealing blood taken by the hospital. Sgt. Allison also testified in both chief and cross-examination about asking Constable MacDonald to seal blood after demanding Mr. Sillars provide a breath sample into an approved screening device and Mr. Sillars was being uncooperative. This occurred just outside Trauma Room 2 in the emergency general area.

Once again, none of the officers had a note as to when this conversation took place at the hospital. I will deal further with this issue when I am dealing with this aspect of the defence Charter application. [ 37 ] Constable MacDonald went with Constable Coles to the lab and spoke with the technician, Gisela McPherson. He asked her if blood had been drawn from Mr. Sillars and if so, was there an extra vial of blood that the hospital was not using. If there was he wanted to put a CFS seal over the top of it. Ms. McPherson told Constable MacDonald there was a vial that was not needed and provided it to him.

He placed a CFS seal, CFS# 2F57321, over the top of the vial the blood was in. Constable MacDonald identified the vial of blood as being from Mr. Sillars because it had a hospital label on it that said “David Sillars.” Constable MacDonald told Ms. McPherson if the hospital needed the blood for their purposes, it was their blood and they should remove the seal and use it. Constable MacDonald told her there was no obligation to save it for the police. He placed the seal on the vial of blood and Ms. McPherson put it in the fridge in a box the hospital had, which said, “Save for police.” [ 38 ] At 6:57 pm, Mr.

Sillars provided a breath sample into the ASD and it registered a “Fail.” The defence advised there would be no challenge to whether the ASD was working properly. After registering a “Fail,” at 6:58 pm, Sgt. Allison advised Mr. Sillars he was arresting him for impaired operation of a vessel and operating a vessel with over 80 mg of alcohol in his body. Sgt. Allison testified as an experienced qualified breath technician for 29 years he knew the “Fail” on the ASD meant Mr. Sillars BAC was 100 mg of alcohol/100 ml of blood or more.

He also knew anyone with a BAC of 100 mg of alcohol/100 ml of blood or higher, their ability to operate a vessel was impaired. [ 39 ] After arresting Mr. Sillars he read him a caution from the pre-printed card he had: You are charged with impaired operation of a vessel and operating a vessel with over 80 milligrams of alcohol. You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand? [ 40 ] Sgt. Allison also read Mr.

Sillars his right to counsel from the pre-printed card he had: I am arresting you for impaired operation of a vessel and operating a vessel with over 80 milligrams of alcohol. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged for an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with legal aid duty counsel for free legal advice right now.

Do you understand? [ 41 ] Mr. Sillars responded, “I don’t have a lawyer.” Sgt. Allison then told him, “We can find a lawyer for you. If you have a name of a lawyer, I can even get a phonebook that’s at the detachment. We have lots of officers. We can go get that phonebook. We can look up your lawyer’s name in the phonebook and we can get his number.” Mr. Sillars again indicated he did not have a lawyer. Sgt. Allison said to him, “You know what, we have free legal advice for you and that’s what this number is for, and we can put you in contact with a free lawyer and free counsel.” Sgt. Allison testified Mr.

Sillars opted for counsel, the free duty counsel and the 1-800 number. [ 42 ] Sgt. Allison asked PC Maki to dial the 1-800 number on the OPP Blackberry because Sgt. Allison had to call to make arrangements for the Intoxilyzer 8000C to be brought to the detachment. Also, he did not have his glasses and the numbers were small on the Blackberry. When PC Maki made the call to duty counsel someone answered immediately, which was unusual. He gave the phone back to Sgt. Allison. Sgt. Allison then provided the phone to Mr. Sillars and he and PC Maki left Trauma Room 2 to give Mr. Sillars privacy in his phone call.

This was done at 7:03 pm. Sgt. Allison agreed when he provided the Blackberry to Mr. Sillars, he had not read Mr. Sillars the breath demand for the approved instrument. [ 43 ] At 7:06 pm, Sgt. Allison was outside Trauma Room 2 when he was advised that Thomas had been pronounced deceased. Sgt. Allison made the decision to interrupt Mr. Sillars’ conversation with duty counsel to advise Mr. Sillars and the duty counsel of the change in circumstances and that Mr. Sillars would now be facing a charge of impaired operation cause death. He told Mr.

Sillars of the elevation of the charge and he then spoke to duty counsel to advise him of the change in Mr. Sillars’ jeopardy and the elevation of the charge. Sgt. Allison then gave the Blackberry back to Mr. Sillars and exited the room to provide Mr. Sillars with privacy. [ 44 ] Duty Counsel, Peter Gakiri, provided an affidavit, Exhibit 27, where he indicated the phone call from Bracebridge OPP was received at 7:04 pm and he began speaking to David Sillars at 7:07 pm. The call with Mr. Sillars ended at 7:12 pm. That was the full extent of his affidavit. Sgt. Allison noted he became aware Mr.

Sillars was off the phone with duty counsel at 7:15 pm. [ 45 ] At 7:15 pm, Sgt. Sillars entered Trauma Room 2 and read Mr. Sillars the demand for breath samples into an approved instrument. He agreed he did not caution or read a further right to counsel to Mr. Sillars after reading the breath demand.

[ 46 ] At 6:59 or 7:00 pm, Sgt. Allison had called the detachment and spoke to PC Adrian Woods and requested he pack up and bring the Intoxilyzer 8000C to the hospital. PC Woods asked PC Rickaby, a qualified breath technician, to assist in packing up the Intoxilyzer 8000C. He arrived at the hospital around 7:10 pm and Sgt. Allison received the Intoxilyzer 8000C in Trauma Room 2 at 7:20 pm. [ 47 ] After the Intoxilyzer 8000C arrived at the hospital Sgt. Allison began to set it up at 7:22 pm. He performed the necessary diagnostic and calibration tests and self-test, which were completed at 7:42 pm.

The defence agreed they had no issues with the working of the Intoxilyzer 8000C. [ 48 ] At 7:34 pm, while Sgt. Allison was setting up the Intoxilyzer, Dr. Kents came into Trauma Room 2 to examine Mr. Sillars and she advised Sgt. Allison that Mr. Sillars was being kept overnight because of his medical condition. [ 49 ] At 7:44 pm, Sgt. Allison re-read Mr. Sillars the breath demand and Mr. Sillars indicated he understood but he once again became “boisterous.” Mr. Sillars asked, “What’s going to happen to me.” Sgt. Allison responded he didn’t know, he had to do his job but he did not know what would happen to him.

PC Baril testified he came into Trauma Room 2 because of Mr. Sillars becoming loud. Sgt. Allison explained the consequences for failing to provide a sample. Mr. Sillars asked how Thomas was doing and Sgt. Allison advised again that Thomas was deceased. Mr. Sillars asked to speak to Ms. Hooper and Sgt. Allison advised it was not the appropriate time for him to speak to Ms. Hooper. [ 50 ] Just before 7:47 pm, Mr.

Sillars provided a good sample of his breath into the approved instrument and once the testing was completed a reading of 97 mg of alcohol in 100 ml of blood was registered. [ 51 ] Between the first breath test and the second breath test Sgt. Allison asked a series of questions of Mr. Sillars and Mr. Sillars made certain responses, which Sgt. Allison recorded in the Alcohol Influence Report. The defence is challenging the admissibility of Mr. Sillars’ statements on the issue of voluntariness. I will address the arguments of counsel respecting this issue in a separate ruling. [ 52 ] At 8:12 pm, Mr.

Sillars provided a further good sample of his breath directly into the approved instrument, which resulted in a reading of 100 mg of alcohol in 100 ml of blood. He also put a late entry into his notebook reflecting Mr. Sillars had to urinate just prior to providing the second sample. The nurses’ notes, Exhibit 13, at page 24, confirms Mr. Sillars urinated at 8:10 pm and the nurse assisted with this. [ 53 ] After the two breath tests were completed, Sgt. Allison advised Mr. Sillars he blew over 80 mg and he was being charged with impaired operation of a vessel cause death and operating a vessel with over 80 mg.

The nurse came in and asked if Mr. Sillars could be moved to another room to free up the emergency trauma room 2. Sgt. Allison indicated this was not a problem as he was finished with Mr. Sillars other than getting his release papers together. [ 54 ] PC Baril accompanied Mr. Sillars to the x-ray department. The nurses’ note, Exhibit 13, page 23, indicates Mr. Sillars went to x- ray at 8:40 pm and was returned at 9:00 pm. An OPP officer remained outside the door. [ 55 ] Sgt. Allison also made arrangements for Mr. Sillars to see Ms. Hooper. PC Baril was instructed to be present as it was unknown how Ms.

Hooper might react to Mr. Sillars. The nurses’ notes Exhibit 13, at page 21 indicated at 10:15 pm, “mother of child in to see pt, visit supervised by OPP, pt tearful, not acute distress.” PC Baril spoke to Ms. Hooper before they both entered the hospital room Mr. Sillars was in. They hugged and Ms. Hooper said to Mr. Sillars, “My baby is dead.” Mr. Sillars responded, “I tried to get to him. The canoe tipped. I couldn’t see him anymore. I don’t remember anything else. I remember being at the hospital and that’s it.” They were sitting together on the bed Mr. Sillars was in, crying and holding onto each other.

At one point Mr. Sillars said, “Turned the canoe sideways and it flipped.” Later Mr. Sillars said “He (referring to Thomas) reached over and the canoe flipped.” PC Baril testified these utterances by Mr. Sillars were made prior to 8:46 pm when PC Baril left to go back to the detachment. The defence conceded these utterances by Mr. Sillars made in the presence of PC Baril to Ms. Hooper were made voluntarily. [ 56 ] Despite Dr. Kents wanting to keep Mr.

Sillars overnight for observation and ordering a further series of blood tests to be done in the morning to check his different levels to ensure everything was back to normal, Mr. Sillars was made aware of the risks of leaving the hospital early and signed himself out of SMMH at 11:34 pm. He left the hospital with Ms. Hooper. [ 57 ] On July 28, 2017, Constable MacDonald attended at South Muskoka Memorial Hospital and executed a search warrant.

The items seized included David Sillars’ hospital records, which included a toxicological analysis of David Sillars’ blood, which showed it contained 30 millimoles/L of ethanol. This information was analyzed and used as the foundation by Mr. Palmentier, the CFS toxicologist, to convert the BAC of Mr. Sillars to mg of alcohol per 100 ml of blood. In addition, the search warrant referred to the vial of blood sealed by Constable MacDonald sometime after the time the blood was drawn by hospital staff. [ 58 ] The defence brought a number of Charter applications alleging violations of Mr.

Sillars’ Charter rights and sought the exclusion pursuant to s. 24(2) of: 1. Mr. Sillars’ breath sample results from Intoxilyzer 8000C; 2. The hospital’s blood alcohol toxicology result contained in Mr. Sillars’ SMMH hospital records and 3. The vial of blood drawn by Gisela McPherson while Mr. Sillars was a patient in the Emergency at SMMH. 4. If that evidence was excluded pursuant to s. 24(2) the analysis and reports prepared by Ms. Amanda Lowe, CFS Forensic Toxicologist, concurred in by Mr. Jean-Paul Palmentier, CFS Forensic Toxicologist, projecting Mr.

Sillars’ BAC to a time between 4:45 and 5:29 pm should also be excluded. 5. The defence also sought the exclusion of any statements made by Mr. Sillars between his two breath tests, which I will be addressing in a separate judgment.

[59] The Charter applications brought by the defence can be summarized as follows: (

a) The defence submitted Mr. Sillars was detained within the meaning of s. 9 and 10 of the Charter when Sgt. Allison requested Mr.Sillars to blow across his face and asked what he had to drink. Sgt. Allison had an obligation pursuant to s. 10(

a) to advise Mr. Sillars hewas conducting a police investigation into impaired operation of a vessel. (R. v. Grant[1]) The defence further submitted R. v.Orbanski[2] and R. v. Thomsen[3] do not have application as the detention was not by the roadside or in the case of a vessel, on awaterway. Therefore the applicable law was R. v. Suberu,[4] where the police duty to inform an individual of their s. 10(

b) rights istriggered at the outset of an investigative detention. The defence also submitted the request for Mr. Sillars to blow across Sgt. Allison’sface was a breach of s. 8 of the Charter; Note: The defence also argued in the alternative that the s. 10(

b) exemption pursuant to Thomsen, supra, and R. v. Seo, (ON CA), [1986] O.J. No. 178, did not apply to police investigations involving canoes. In my view, this argument is for all intents andpurposes identical to the defence argument in (a). (

b) The ASD demand was not lawful because it was not made forthwith; (

c) Mr. Sillars was arrested after the ASD “Fail” for the wrong offence and not properly advised of the reason for his arrest; (

d) Mr. Sillars’ s. 10(

b) right to consult with counsel of choice was infringed; (

e) Mr. Sillars’ s. 10(

b) right to counsel was breached because he was not given a further opportunity to consult with counsel after Sgt.Allison made the breath demand pursuant to s. 254(3)(a)(

i) after he spoke to duty counsel; (

f) The medical staff who drew samples of blood from Mr. Sillars in Trauma Room 2 were co-opted by police and therefore Mr. Sillars’s. 8 Charter rights were infringed. (

g) Further, the defence submitted the ethanol analysis ordered by the emergency room doctor, Dr. Kents, is best explained as an effortby the doctor to assist the police investigation; (

h) The defence also challenged the facial validity of the warrant to seize hospital records and the sealed blood sample from SouthMuskoka Memorial Hospital. First, the defence submitted there was an absence of grounds to authorize the seizure of the Applicant’smedical records. Second, if the breath samples and readings obtained from Mr. Sillars are excluded as a result of some or all of thealleged Charter breaches, there would have been insufficient evidence before the issuing justice to issue the warrant. [60] It was the defence position during oral submissions that Sgt.

Allison intentionally and deliberately breached Mr. Sillars’constitutional rights and then lied about his conduct when he testified on this application. It was the contention of the defence that thepattern of deliberate Charter breaches by Sgt. Allison led to the conclusion that the admission of Mr. Sillars’ breath samples andreadings would bring the administration of justice into disrepute. [61] The defence focused their submissions, in large part, on Sgt. Allison’s lack of reliability and credibility as being the “criticalwitness” on the numerous alleged Charter violations.

The defence prepared an Appendix “A,” which they maintained demonstratednumerous instances where Sgt. Allison’s evidence was internally inconsistent or where his evidence changed during cross-examination.The defence alleged Sgt. Allison engaged in “slipshod note-taking practices, losing or destroying” a scratchpad where he noted times andthe steps he took. [62] Finally, the defence alleged Sgt. Allison “committed multiple breaches” of my order excluding witnesses and prohibitingcommunication between them about their evidence. It is the defence position this circumstance weighs heavily against Sgt.

Allison’soverall credibility. [63] The Crown submitted there were no Charter breaches of Mr. Sillars’ constitutional rights, all of the evidence was obtained incompliance with the Charter and even if there were infringements of Mr. Sillars’ rights, the defence has failed to establish that theadmission of the impugned evidence would bring the administration of justice into disrepute. Analysis [64] Prior to analyzing the Charter arguments raised by the defence, I want to first address the extent to which I find Sgt. Allison’sbreach of the witness exclusion order impacted his evidence.

I will then discuss generally my assessment of the evidence of Sgt. Allison.After which I will determine a timeline, based on the totality of the evidence, as to what occurred from the time Mr. Sillars was found onHighway 11 until he was charged with impaired operation of a vessel causing death and operating a vessel with a BAC over 80 mg/100ml blood. After this I intend to address and analyze each of the Charter arguments raised by the defence. Sgt. Allison’s Breach of the Order Excluding Witnesses and Its Impact [65] Mr. Rosenthal in his oral and written submissions elevated Sgt.

Allison’s discussion outside the courtroom with ConstableMacDonald and Sgt. Edey on November 1, 2018, exceedingly higher in my view than was justified considering the totality of theevidence and the circumstances in which the discussions occurred. [66] An order excluding witnesses is often made at the beginning of a trial to ensure that a witness’ evidence is not influenced ortainted by the evidence of another witness they might hear if they were in the courtroom when the witness testified or if the earlierwitness advised the witness the evidence they gave during their testimony.

The concern is with witnesses colluding or attempting toprovide consistent testimony by discussing or hearing another witness’ evidence. [67] Apparently Sgt. Allison was overheard talking to Constable MacDonald, who had completed giving his evidence on this trial andSgt. Edey, the scenes of crime officer who took photographs the day after the incident of the Muskoka River and High Falls as well as

items of clothing seized by the police, in a room outside the courtroom with the door open, such that their conversation could be heard. This conversation occurred on November 1, 2018. [ 68 ] All three officers admitted the main discussion was concerning the issue of whether a canoe was included in the definition of vessel. This issue was a central question to be decided in this case by the court. The evidence of each of these three officers who were having this discussion played no part whatsoever in the determination of this question.

I find this part of their discussion did not breach my order excluding witnesses in any manner. [ 69 ] Another discussion referred to by Constable MacDonald and Sgt. Edey from November 1, 2018, was Sgt. Allison complaining that Mr. Rosenthal was going over the same areas he had been cross-examined about on October 26, 2018. He expressed his frustration in having to answer the same questions over and over again. Sgt. Allison admitted he had similarly complained to PC MacDonald about Mr.

Rosenthal’s cross-examination on Sunday, October 28, 2018, when he referred to counsel as “an angry little man.” Constable MacDonald testified he had responded to Sgt. Allison that “you (referring to Mr. Rosenthal) presented yourself very angry in the courtroom because you were scared shitless the father was going to kill you outside the court.” I do not agree with the defence submission that this discussion was in breach of my court order. Sgt. Allison did not discuss any of the specifics of his cross-examination by Mr. Rosenthal, rather, he was expressing his frustration with the manner of Mr.

Rosenthal’s cross-examination, which was in a number of areas repetitive. PC MacDonald had completed his evidence sometime prior to Sgt. Allison’s complaint and I accept his evidence that he did not discuss any of the specifics of the evidence he had provided in his testimony. [ 70 ] Mr. Rosenthal testified Constable MacDonald and Sgt. Edey were reluctant to provide information about what Sgt. Allison had talked about on November 1, 2018, in this room outside the courtroom. I do not agree with his characterization of their evidence. Sgt.

Edey and Constable MacDonald were both, in my view, forthcoming and candid concerning the content of the discussion they had with Sgt. Allison concerning whether a canoe was a vessel and listening to his complaints concerning the manner of defence counsel’s cross- examination. [ 71 ] What raised some concern was Sgt. Allison’s reference to his discussion with Constable MacDonald on the issue of where he and Constable MacDonald had conversations in the hospital concerning Mr. Sillars. Constable MacDonald’s evidence was clear during his testimony on October 22, 2018, on this issue.

On April 7, 2017, sometime after he and Constable Coles had been involved in conducting a detailed interview with Jessica Hooper in the quiet room at SMMH, which is down the main floor hallway from the emergency general area, Sgt. Allison came to this room and pulled both officers from the interview to discuss information concerning Mr. Sillars and whether he had consumed alcohol before taking the canoe with Thomas onto the Muskoka River. Sgt. Allison in his evidence on October 26, 2018, did not recall going to the quiet room after he arrived back at SMMH from the detachment. It was Sgt.

Allison’s recollection they had conversation in the emergency general area outside Trauma Room 2 where Mr. Sillars was, however, he testified he could not disagree with defence counsel’s suggestion he had gone to the quiet room and spoken to Constables MacDonald and Coles there and learned information they had obtained from Ms. Hooper concerning what happened. This evidence of Sgt. Allison occurred prior to any discussion he had with Constable MacDonald. Sgt. Edey recalled hearing bits and pieces of Sgt.

Allison speaking to Constable MacDonald and asking about where the trauma room was in relation to the quiet room but it did not involve her so she did not pay attention. I find Sgt. Edey was not part of this conversation, which was between Sgt. Allison and Constable MacDonald. This was said when Sgt. Allison was complaining about the cross-examination and his frustration over being asked the same questions repeatedly. [ 72 ] I find, based on the totality of the evidence on this issue that the conversation between Sgt.

Allison and Constable MacDonald concerning this issue likely occurred on both days, Sunday, October 28, 2018 in the Sergeant’s office in Bracebridge detachment and November 1, 2018 in the room outside the courtroom, it was brief and I find Sgt. Allison most likely made these comments and had this discussion during the time he was complaining about the defence cross-examination. What is clear in my view is Sgt.

Allison’s evidence on this issue did not change from October 26, 2018 and November 1, 2018 in that he maintained on both dates he did not recall going to the quiet room but would not disagree with Constables MacDonald’s and Coles’ evidence he did speak to them outside the quiet room. I also take into account the fact the discussion between Sgt. Allison and Constable MacDonald and Sgt. Edey, took place in a room outside the courtroom with the door open to the public corridor where it was overheard by one of the defence counsel.

This circumstance I find informs the underlying intent of the discussion, which in my view was not an attempt to influence testimony or taint it. [ 73 ] The final breach of the order excluding witnesses submitted by the defence related to Sgt. Allison telling Constable MacDonald and Sgt. Edey when he had completed his evidence and was exiting the courtroom that he was one step away from contempt and had been reamed out by the judge for discussions he had that day but he can’t discuss it further.

In my view this was not a breach of my order excluding witnesses, rather, it passed information on to future witnesses of the importance and seriousness of complying with such an order. [ 74 ] The caselaw dealing with witnesses breaching an order excluding witnesses is not particularly plentiful. Three cases I found are R. v. Dobberthein [5] , R. v. Buric [6] and R. v. Singh . [7] In Dobberthein , the Supreme Court majority relied on an old line of English cases, which held the Court should not reject a witness’ evidence for breaching an order excluding witnesses.

Clearly it is for the trier of fact to consider what weight should be given to the witness’ breach in the assessment of the witness’s reliability. I do not agree with defence counsel’s submission that Sgt. Allison committed “multiple breaches” of the order excluding witnesses. Further, I do not agree with the defence submission that Sgt. Allison’s conduct “weighs against his overall credibility.” This quote was from Justice Edwards’ decision in Davies v. Corp. of the Municipality of Clarington . [8] The conduct engaged in by the witness in Davies was exceedingly more egregious and serious than Sgt.

Allison and there was also evidence provided of the witness’ criminal record for dishonesty, which Justice Edwards referred to in making the above-noted finding. [ 75 ] I will certainly take this incident into account when I am assessing Sgt. Allison’s evidence, however, in my view his discussion with Constable MacDonald, on the one issue I believe he breached to some extent my order, was minor. I find it did not impact Constable MacDonald’s evidence, which he had already given nor did the conversation cause Sgt. Allison to change his own evidence. The Defence Attack on the Evidence of Sgt.

Allison [ 76 ] The defence brought to bear a forceful, vigorous and relentless attack on Sgt. Allison’s credibility. It was Mr. Rosenthal’s

position that this officer intentionally violated Mr. Sillars’ Charter rights in order to obtain evidence against him and then lied about his conduct in court. He submitted the Charter violations are all inextricably linked to the testimony of Sgt. Allison and his lack of credibility. [ 77 ] I reject this submission. I saw no indication during Sgt. Allison’s testimony that he was out to get Mr. Sillars. None of the steps taken by Sgt. Allison during his investigation of Mr. Sillars at the hospital demonstrated he intentionally violated Mr. Sillars’ Charter rights.

In my view this allegation of his intentionally breaching and ignoring Charter rights for the purpose of obtaining evidence against Mr. Sillars is not supported by the evidence. Sgt. Allison, in my assessment, provided his evidence in an even-handed manner and often agreed with suggestions made by counsel. To provide only one example of this, it was suggested to Sgt.

Allison he was returning to the hospital “specifically to develop grounds?” He replied, “I wouldn’t have stated it that way but to continue the investigation into possible impaired operation.” When he was referred to his Alcohol Influence Report where he noted “Attend to assist and develop grounds,” he agreed he attended to develop grounds otherwise he would not have brought with him the ASD or the blood test. This was cited by the defence in their Appendix as an inconsistency in Sgt. Allison’s evidence, in my view it was a question of semantics. [ 78 ] A great deal was made of Sgt.

Allison’s note-taking in his police issued notebook and his notes as the qualified breath technician contained in the Alcohol Influence Report. When his notes were qualified by the Crown, Mr. Rosenthal first confirmed he had all the pages of Sgt. Allison’s police issued notebook then asked, “Okay, and these are the only notes, other than the Alcohol Influence Report, that you ever made in relation to this case?” Sgt. Allison answered “Yes, yes, absolutely.” [ 79 ] Later in cross-examination, Sgt. Allison was asked if he kept any rough or scratch notes when he was at the hospital and he indicated he had.

When he was asked to provide this scrap sheet of paper Sgt. Allison indicated it had been misplaced as he did not have it. Mr. Rosenthal produced a number of pages from Ontario Provincial Police Orders, 2.50: Member Note Taking , page 3 or 5, makes reference to an officer making original investigative notes in other than their “Daily Journal,” e.g. loose-leaf paper, envelope, dash pad, the uniform member shall transcribe such notes verbatim into the “Daily Journal”, record date and time verbatim notes were transcribed and initial and retain the original investigative notes.

I was not provided what the consequences might be for failure to comply with this order respecting note-taking. The defence submitted that Sgt. Allison lied to the court when he testified his only two forms of note-taking were his police issue notebook and his Alcohol Influence Report. When this was suggested to him Sgt. Allison testified he had forgotten he had written down rough notes with times and some details and would not have considered them to be notes. I accept Sgt.

Allison’s evidence on this issue, particularly having regard to what I have already referred to as the hectic, frantic and chaotic circumstances in the emergency area at SMMH. This view of the chaotic, frantic environment in the emergency department is supported by the failure of the other OPP officers to record the times they performed their duties at the hospital. Sgt. Allison testified he recorded the times in his notes from this scrap sheet of paper.

I accept his evidence on this issue having regard to the fact in many instances his times correspond with and are corroborated by the nurses’ notes as to when events took place. [ 80 ] The whole sequence of events that occurred prior to Sgt. Allison attending the hospital, including the police finding Mr.

Sillars suffering from hypothermia on Highway 11, the search and retrieval of Thomas Rancourt from the Muskoka River, as well as the upset and distress experienced by the officers involving in those life-saving measures can only be described as not the run of the mill ordinary or typical police investigation, together with everything that occurred at the hospital. These circumstances and the context of what was occurring certainly impacted and caused police officers to not perform their duties involving note-taking, perfectly.

It is also my view these circumstances were not conducive to careful note-taking on the part of the officers involved. The officers were not at the detachment where they would have access to offices where their notes could be written up without the commotion and distractions that clearly existed at SMMH. Further, as the qualified breath technician, Sgt. Allison’s involvement in the breath room if the matter had been investigated at the detachment would have been recorded on video-tape, however, this was not available given Mr.

Sillars was being treated in hospital. [ 81 ] It is my view from the totality of the evidence of the police officers at the hospital and the medical staff that during the early evening hours of April 7, 2017, the emergency area was completely hectic, frantic and chaotic. This was not a regular occurrence for SMMH’s emergency department. In addition to dealing with Mr.

Sillars and Thomas Rancourt, the emergency department had an additional patient in one of the other trauma rooms who was under arrest and police guard, who was handcuffed to a gurney because he was violent, swearing loudly and at times out of control. As a result the timing of when certain events took place in the hospital, to some extent, is difficult to pin down as most of the police officers involved did not note times in their notebooks as to when they did the tasks they performed.

In my view this circumstance, while not a best practice for police officers was certainly understandable and explainable and not deliberate. I will deal more specifically with this issue later in my reasons. [ 82 ] While these circumstances provide a backdrop and context explaining why the note-taking of all of the officers involved in this investigation was not done with the usual diligence and professionalism expected, it does not justify or excuse what Mr. Giordano described during submissions as “sloppy” note-taking. [ 83 ] Much was made of Sgt.

Allison’s evidence respecting his attempting to do his best in terms of writing up his notes contemporaneously as possible. Considering the circumstances it would be extremely difficult for any of the police officers to be writing down notes at the exact time events unfolded. It is in these types of circumstances that police officers do not note everything that they recall happening. The issue as to what can be made of an officer’s failure to record everything that he or she is testifying about has been the subject of a number of

summary conviction appeal decisions. As Justice Durno in R. v. Brown , [9] held: “While some cases appear to hold that the failure to record the evidence in notebooks or elsewhere is fatal to the evidence being found credible and reliable, being acted upon, I am not aware of any binding appellate authority to that effect.” [10] [ 84 ] Justice Durno continued: 22 With respect to those who hold a different view, the absence of notebook entries should not result in the automatic rejection of the evidence.

A blanket, "if it is not in the memo book" it is either inadmissible or not worthy of belief goes too far. 1 No doubt, it is a significant factor to be assessed on a case-by-case basis by the trial judge in light of the explanation for the omission, the significance of the omission and other evidence. While officers' notebook entries are now part of disclosure, to suggest that there is now a constitutional obligation on officers to include each and every piece of information that they will testify to in examination-in-chief and cross-

examination is to put a mandate on the police that is not supported by any binding authority. It would also remove any consideration forthe officer's independent recollection of the events. If that were the law, if an officer testified to events that were not noted in his or hernotebook but were of assistance to an accused in his or her Charter application or trial defence, would that mean it would have to beignored? Footnote 1 above: The appellant relied on the judgments in R. v. Tait, [2012] O.J. No. 524, 2012 CarswellOnt 1325 and R. v. Odgers,2009 ONCJ 287 , [2009] O.J. No. 2592, 2009 CarswellOnt 2648.

To the extent that those judgments hold or imply that theabsence of a notebook entry precludes reliance on the evidence or that there is a duty on police officers to include all evidence in theirnotebooks, I respectfully disagree. 25 I addressed the issue of officers' notebooks in R. v. Machado (2010), 2010 ONSC 277 , 92 M.V.R. (5th) 58 as follows: 121 While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything heor she did or saw in their notebook to comply with the Crown's disclosure obligation.

While some ... have attempted to elevate thejudgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did notoccur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted havebeen accepted: R. v. Thompson (2000), (ON CA), 151 C.C.C. (3d) 339 (Ont. C.A.); R. v. Bennett [2005] O.J. No.4035 (S.C.J.). 122 I agree with the following comments of Garton J. in R. v. Antoniak, [2007] O.J. No. 4816: 24.

It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officerson the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of theevents. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independentrecollection from the equation. The notes would become the evidence. 25.

The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, mustbe determined by the trier of fact on a case-by-case basis. [85] I agree with and adopt the comments of Justices Durno and Garton, however, where a police officer does not make a noterespecting a particular step in the sequence of events or an utterance by a suspect or witness this may be a significant factor in assessingthe witness’ evidence in light of the explanation for the omission, the significance of the omission and in light of other witness’ evidence.I do agree this is something that must be determined by the trier of fact on a case-by-case basis. [86] The defence in their submissions, both oral and written, respecting the evidence of Sgt.

Allison took the position if somethingwas in Sgt. Allison’s notebook that was not supported by another witness’ evidence, Sgt. Allison was lying. If something was in Sgt.Allison’s notebook and another witness did not recall any interaction with Sgt. Allison on that particular point, once again Sgt. Allisonwas lying. I do not agree with that characterization, as it runs contrary to the cases I have referred to above. [87] I intend to address many of the inconsistencies in Sgt.

Allison’s evidence alleged by the defence, which are set out in Appendix“A” to their written factum, during my analysis of what the defence has submitted are Charter violations by Sgt. Allison. [88] During the vigorous cross-examination that continued over two days, I did not observe Sgt. Allison to become combative orevasive in his answering of questions. There were occasions, which I will discuss more fully later, where I believe Sgt. Allison wasflustered and became confused in his recollections because of the deficiency demonstrated in the completeness of his note-taking.

As Iindicated above there were a number of occasions where the suggestions put to Sgt. Allison by the defence were conceded to or heindicated he could not disagree. On other occasions where he resisted the defence suggestions put to him it is my view he did not becomeinflexible or unreasonable. Even where the suggestion put to Sgt. Allison was what I would describe as utterly insignificant orinconsequential, Sgt. Allison did not lose his cool or get upset. e.g., there was much made of the perceived discrepancy in times betweenhis notes and the Alcohol Influence Report respecting when Mr.

Sillars blew into the ASD, the “fail” registered and Mr. Sillars’ arrest.In his notebook Sgt. Allison noted: “6:57: David Sillars provided suitable sample, registered a fail.” In the Alcohol Influence Report henoted the ASD fail occurred at 6:58. Similarly, the times for the right to counsel there was a minute’s difference, 6:58 as opposed to6:59. In my view there was no discrepancy between these two notes and this was an example of the defence focussing on minutiae thathad no significance to my assessment of Sgt. Allison’s credibility. [89] Having considered Sgt.

Allison’s evidence in light of the evidence as a whole, I find he did not deliberately or intentionallyviolate Mr. Sillars’ Charter rights and that he testified truthfully concerning his involvement with Mr. Sillars at the hospital. I agree withthe Crown’s characterization of Sgt Allison’s note-taking as being more sloppy than malicious and more hapless than mean-spirited anddeliberate. There are, as I will discuss later in my reasons, concerns raised with respect to the reliability of his evidence as a result of hisdeficient note-taking that I will address during my analysis of the Charter applications.

Timeline [90] One of the difficulties in determining an accurate timeline is that for the most part the other OPP officers in attendance at thehospital did not record the times when they were doing things at the hospital. On the totality of the evidence it is my view this incidentwas completely outside the usual experience of the officers on duty who responded to the initial emergency of a canoe capsizing andthrowing two individuals into the freezing waters of the Muskoka River, just above High Falls.

The impact on the police officersinvolved in the search for Thomas Rancourt and the discovery, retrieval and life-saving attempts, both at the scene and in the hospital,were very upsetting and traumatic. [91] A further factor I have considered is the number of different clocks or watches or devices that keep time that the differentparticipants used to write down the times they noted, when and if they did, and the fact that none of these time pieces were synchronizedin anyway. Consequently, the times may be out of synch by a minute or two or three. This was true for the differences in the hospitaltimes from Mr.

Sillars’ medical records.

[ 92 ] I should also note that I have put times in the 12 hour clock, with am or pm as necessary and have not used the 24 hour clock, generally used by the police. The hospital staff used both the 12 hour clock and 24 hour clock to express the times certain tasks were done. [ 93 ] I should also note that in determining when different events took place I can accept all, some or none of a witness’ evidence.

Of particular assistance in determining the timing of certain events that occurred in the hospital are the nurses’ notes contained in Exhibit 13, where Nurse Smith and the nurse who replaced Nurse Smith, as part of their regular duties noted specific times as to when specific events occurred. I found these entries helpful in comparing them to the evidence of the various OPP officers involved at the hospital. [ 94 ] David Sillars set out in a canoe with eight year old Thomas Rancourt at 4:45 pm. This time was provided by Ms. Hooper to police during her interview at SMMH. Ms.

Hooper did not testify so this time is not in the evidence to be considered on the trial, however, it is a piece of information used by the officers involved in the investigation respecting the formation of their grounds. [ 95 ] There was no time provided as to when the canoe capsized or flipped by the barrier of buoys just before High Falls, which upended and threw Mr. Sillars and Thomas Rancourt into the river. [ 96 ] David Sillars told police in what are agreed to be voluntary utterances after the canoe flipped and Thomas remained in the river. Mr.

Sillars swam to shore and ended up on the on-ramp from Highway 117 to Highway 11. At 5:29 or 5:30 pm he was located, suffering from hypothermia, put into the rear of a police SUV to get warm. It was learned he had been in a canoe that had capsized in the river and a young boy, wearing a lifejacket was still in the water. A great many officers responded to look for this young boy. The scene as described by the officers was frenzied and frantic as officers searched below High Falls and around the river.

One can only imagine how tense and stressful the period was leading up to Thomas’ discovery below High Falls down river. He was not found until 5:46 pm with vital signs absent and CPR was commenced by the officers at that location. The emotion and helplessness experienced by the officers present was described as being profound and intense. An ambulance arrived on scene at 5:52 pm and took Thomas to SMMH, arriving around 6:15 pm. PC Baril, who assisted PC Woods at the scene with CPR, attended the hospital in the back of the ambulance with Thomas. He did not note the time the ambulance arrived at the hospital.

None of the EMS paramedics involved with the transport of Thomas to SMMH were called as witnesses. [ 97 ] Mr. Sillars arrived at SMMH by ambulance at 5:51 pm and care was transferred to the hospital at 5:54 pm from EMS. All of the police officers involved at the scene indicated at this point in time there was no thought of a criminal investigation, there was only concern for Mr. Sillars’ medical condition, which the officers immediately recognized as hypothermia. No police officer attended with Mr. Sillars in the back of the ambulance or followed the ambulance to the hospital. [ 98 ] P.C.

Maki believed he was the first officer at the hospital. He had been tasked by either Sgt. Allison or Constable MacDonald, or both, to obtain information about what had happened, why the canoe had capsized. He did not note the time of his arrival. He testified he could not speak to Mr. Sillars when he first arrived because Mr. Sillars was receiving medical treatment from the medical staff at the hospital. He did not direct the hospital staff to do anything and stood by until there was an appropriate time to speak to Mr. Sillars. Dr. Kents described Mr.

Sillars as confused, agitated and upset, swearing and shouting when he first arrived at the hospital. She was with him initially for about 15 minutes and later she was in and out. Vicki Smith, the ER nurse assigned to Mr. Sillars until 7:30 pm when she was relieved by the night ER nurse, described Mr. Sillars as having difficulty speaking because he was shivering so violently. The medical staff put a “Bair Hugger” on him to warm his body, an IV with warm fluids and warm blankets wrapped around him to warm his body. [ 99 ] Vicki Smith testified the Trauma Panel ordered by Dr.

Kents was not ordered until sometime after Mr. Sillars arrived at the hospital because the young boy was brought in and a “code” had to be run in Trauma Room 1 and Dr. Kents was dealing with that situation. [ 100 ] Up to this point in time there are no notes, either hospital or police to indicate when events took place. The nurses’ notes indicate at 6:30 pm the OPP were in Mr. Sillars room. Based on the totality of the evidence surrounding what was happening in the hospital in terms of medical treatment and care, I find it was PC Maki who entered Mr.

Sillars room at 6:30 pm to obtain further information as to what happened that caused the canoe to capsize. Vicki Smith testified she was with Mr. Sillars for the entire time after she was assigned to provide his medical care and treatment. The note immediately after the note indicating “OPP in with pt.,” also at 6:30 pm was Dr. Kents ordering the trauma blood panel for Mr. Sillars. Vicki Smith testified Dr. Kents stuck her head in Trauma Room 2 and verbally ordered the Trauma blood panel. [ 101 ] I accept PC Maki’s evidence that he was not investigating any criminal offence when he asked questions of Mr.

Sillars. Mr. Sillars in my view was not detained by police at this point in time. [ 102 ] Sgt. Allison returned to the detachment at 6:08 pm to make sure PCs Reading and Woods were properly looked after because they had both been in the river during the retrieval of Thomas Rancourt. He believed PC Reading was suffering the effects of hypothermia and told her to take a hot shower and to then go home to rest, as she was exhausted and quite emotional and stressed out because of her involvement in retrieving Thomas.

PC Woods also was directed to take a hot shower but he testified he was okay to stay at the detachment in the event he was needed. PC Woods was only in the water from the waist down holding the rope tied around PC Reading who swam out to where Thomas was in the river. [ 103 ] While at the detachment Sgt. Allison testified he became aware from a police officer, he thought it might have been PC Wadia but was unsure, that the owner of the cottage had indicated David Sillars had been consuming alcohol that day. [ 104 ] Sgt.

Allison referred in his evidence to a phone call he had with PC MacDonald, who was at the hospital, while Sgt. Allison was at the detachment. No time was noted when this call took place. Sgt. Allison recalled PC MacDonald advising him Mr. Sillars told PC MacDonald he had two coolers and that Jessica Hooper had confirmed Mr. Sillars had two coolers at the cottage. PC MacDonald testified he did not recall speaking to Sgt. Allison by telephone when he was at the hospital and Sgt. Allison was at the detachment. Finally, Sgt.

Allison recalled in this telephone conversation mentioning to PC MacDonald they might have to seal blood if it was taken by the hospital staff.

[ 105 ] PC Rickaby was at the SMMH from 8:30 am respecting another individual who was in custody under the Mental Health Act and was suffering from mental health issues. This individual was handcuffed to a gurney in an emergency room because he was violent and PC Rickaby was instructed to guard him. After 5:30 pm he heard on his radio that officers were responding to two individuals who had ended up in the Muskoka River and he advised hospital staff there may be two casualties coming by ambulance with cold water injuries.

He called PC MacDonald and asked if there was anything he could assist with at the hospital, as he was there and he was asked by PC MacDonald to get information from the male party being brought to hospital by ambulance as to what had happened. However, when the individual, who he later learned was David Sillars, arrived at the hospital, PC Rickaby was not able to speak to Mr. Sillars as he was in rough shape and in dire need of medical treatment. No opportunity ever occurred for PC Rickaby to speak to Mr.

Sillars before he left the hospital just after 6 pm when he was relieved by PC Gilbert, who took over security of the person he was watching. He had no contact with Mr. Sillars. [ 106 ] PC Rickaby also spoke to Jessica Hooper, who arrived at the hospital and he obtained the names of the two individuals involved, David Sillars and her son, Thomas Rancourt. She had been brought to SMMH by PCs Hallet and Van Norman. He also spoke to PC Wadia who was transporting Jack Kapel, who owned the cottage from where the canoe had left. PC Wadia told PC Rickaby that Mr. Kapel told him Mr.

Sillars was consuming alcohol at the cottage that day. PC Wadia noted he spoke to PC Rickaby at 6:26 pm. Shortly before he left the hospital PC Rickaby observed PC Maki standing in the general area of the emergency room outside Mr. Sillars’ room and he told PC Maki about the information PC Wadia received from Mr. Kapel that Mr. Sillars had been consuming alcohol before canoeing. PC Rickaby noted he left the hospital at 6:40 pm. [ 107 ] In cross-examination Sgt. Allison was questioned about his evidence that he had learned from some officer, possibly PC Wadia, who advised the owner of the cottage had indicated Mr.

Sillars had consumed alcohol before going out in the canoe. What is significant is this is what in fact was told to PC Wadia by Mr. Kapel and PC Wadia told PC Rickaby, and PC Rickaby told PC Maki who ultimately spoke with Sgt. Allison. It is my view there was so much going on that any one of those officers could have passed this information onto Sgt. Allison. Sgt. Allison had a recollection that an officer from the day shift who was leaving work passed this information onto him but he did not note it as he was dealing with PCs Reading and Woods. I find there is a reasonable inference that Sgt.

Allison learned this information when he was at the detachment before he returned to the hospital or as he arrived at the hospital. The defence cited this as another example where Sgt. Allison was not telling the truth, however, as indicated above, it is my view there is a reasonable inference one of the officers noted above did advise Sgt. Allison of the information from Mr. Kapel. Sgt. Allison’s evidence on this issue was he thought he received the information from PC Wadia but was not sure as he did not note it, and that some officer at the detachment advised him of this information.

I find there was no inconsistency in his evidence on this issue and it is clear this information had been conveyed to at least three police officers and ultimately conveyed to Sgt. Allison. [ 108 ] PCs MacDonald and Coles arrived at the hospital between 6:10 and 6:13 pm. It is my understanding from their evidence they became aware that Jessica Hooper, Thomas’ mother, was in the quiet room at SMMH with PC Van Norman and they attended there to interview her. Again, other than the arrival time and when they left the hospital there are no times noted in either officer’s notebook.

Constable MacDonald had no explanation other than it was so hectic and chaotic at the hospital he did not address his mind to entering the times things were occurring. Constable Coles testified his watch band had broken previously and he was not wearing a watch on his arm as a result and was using the clock in his police cruiser for times. The statement provided by Ms. Hooper was described, in answer to a question in cross-examination, as being detailed, which would obviously have taken some period of time. [ 109 ] Sgt. Allison testified he returned to the hospital at 6:38 pm.

PC Rickaby could very well have told Sgt. Allison what he had been told by PC Wadia as this was just before the time PC Rickaby left the hospital at 6:40 pm. Further, Sgt. Allison had requested PC Maki to speak to Mr. Sillars to determine what had happened with respect to the canoe capsizing and he could very well have told Sgt. Allison this information when Sgt. Allison arrived at the hospital. No one asked either PC Rickaby or PC Maki if this was information that was provided by them to Sgt. Allison.

Again, as I have already indicated this incident created a traumatic, emotional and hectic set of circumstances for the police officers involved and a great deal of information was being obtained and shared by a number of different officers. [ 110 ] The defence have attempted to put Sgt. Allison directly into Trauma Room 2 immediately upon his arrival at the hospital, however, it is my view when one examines the totality of the evidence concerning the period of time between 6:38 and 6:50 pm, there are events and conversations that would have required Sgt.

Allison’s attention prior to his speaking to David Sillars. I will address this specific timing issue when I deal with the Charter application respecting whether the ASD demand was made forthwith. [ 111 ] Both PCs MacDonald and Coles were in the quiet room when according to both officers, Sgt. Allison knocked on the door. Based on the evidence of PCs MacDonald and Coles there very well could have been two occasions this occurred where Sgt. Allison interrupted Ms. Hooper’s interview. The first time would be when Sgt.

Allison requested PC Coles to retrieve the OPP Blackberry used where detained individuals had expressed a desire to call a lawyer or duty counsel. On the evidence here I find Sgt. Allison was ensuring he had the OPP Blackberry prior to commencing his investigation into whether grounds existed to make an ASD demand. [ 112 ] The second occasion would be when both of these officers indicated Sgt. Allison called them out into the hallway outside the quiet room and they told him the information provided by Ms. Hooper during the interview, including her saying Mr.

Sillars had 2 coolers and had left the cottage in the canoe at 4:45 pm. Constable MacDonald had no recollection of PC Coles being requested to retrieve the OPP Blackberry for Sgt. Allison. I find on the totality of the evidence that these interruptions occurred prior to Sgt. Allison entering Trauma Room 2 to speak to Mr. Sillars. [ 113 ] I accept the evidence of both PCs MacDonald and Coles, who I found to be credible and reliable witnesses. Their evidence was balanced and precise, although they both neglected to put the times when things they were involved with occurred into their notebooks.

In my view in a perfect world or different circumstances they would have noted times in their notes when things occurred but the circumstances were not conducive to perfection in note-taking by the officers involved in this investigation. [ 114 ] The nurses’ notes, Exhibit 13, page 23, written by Vicki Smith, indicated at 6:45 pm the labs (blood) were drawn and sent to the lab and urine was sent for a drug screen at the same time. There is also reference to Mr. Sillars asking frequently about the eight year old boy. It was not until 6:50 pm that “OPP in to speak with pt” (Mr. Sillars).

I find this was the time Sgt. Allison first entered Trauma Room

2 to investigate whether there were grounds to suspect Mr. Sillars had alcohol in his body in order to demand a breath sample into an ASD or whether Mr. Sillars’ ability to operate a vessel was impaired by alcohol. It is important to note Vicki Smith’s evidence that she was with Mr. Sillars until she was relieved by the night shift ER nurse at 7:30 pm. She was making notes as they were happening and she was noting the occasions the OPP were interacting with her patient, Mr. Sillars. I find Ms. Smith was a credible and reliable witness, who was clear in her evidence and that she had no agenda.

Her concern was the well-being of Mr. Sillars, who was her only responsibility. [ 115 ] In my view there is a reasonable inference on the evidence that Sgt. Allison spoke to the officers at the hospital who were speaking to witnesses or had spoken to Mr. Sillars to obtain information that would assist him in developing his grounds, which he testified was his reason for returning to the hospital. It does not accord with common sense or logic that he would attend Mr. Sillars room immediately upon arriving at the hospital. He had requested PC Maki to speak to Mr.

Sillars to obtain information about what had happened. It accords with common sense that Sgt. Allison would have spoken to PC Maki before first speaking to Mr. Sillars. He also knew officers were speaking to Ms. Hooper, Thomas’ mother, and another officer, he believed it was PC Wadia, had spoken to the owner of the cottage. Further, it is my view Sgt. Allison needed the time the canoe first entered the water, which was provided to PCs MacDonald and Coles by Ms. Hooper as being 4:45 pm, before he spoke to Mr. Sillars in order to comply with s. 254(2) if he formed a reasonable suspicion Mr.

Sillars had alcohol in his body within the preceding three hours. This time was noted in Sgt. Allison’s notes and he could only have received it from Constables MacDonald and Coles, who obtained it from Ms. Hooper. [ 116 ] Sgt. Allison also did a self-test into the ASD to ensure it was working properly at 6:48 pm. I find there is a reasonable inference that he did this outside the room where Mr. Sillars was, which would have put him in a position to see the lab technician leaving Trauma Room 2 with a trolley and vials of blood to go to the hospital’s laboratory for testing, as he testified. I find Sgt.

Allison was attempting to put everything in place to make an ASD demand so there would be no delays if he formed a reasonable suspicion Mr. Sillars had alcohol in his body within three hours of operating a vessel. [ 117 ] At 6:50 pm, after speaking to the officers in the hospital to gather information and after doing the self-test on the ASD, I find Sgt. Allison entered Trauma Room 2 where Mr. Sillars was for the first time. When Sgt. Allison entered the room he agreed he did not explain to Mr. Sillars why he was there or what he was investigating. He asked Mr.

Sillars to blow across his face and as a result detected a slight odour of alcohol on Mr. Sillars breath. In my view this was another example of Sgt. Allison being fair in his evidence, as he could have easily said the odour was strong. Sgt. Allison did not tell Mr. Sillars why he asked him to do this. He then asked if he had anything to drink and Mr. Sillars said two coolers. Sgt. Allison agreed he did not advise Mr. Sillars of his right to counsel before asking him to blow across his face or asking what he had to drink. [ 118 ] As a result of smelling the slight odour of alcohol and Mr.

Sillars’ admission that he had two coolers, Sgt Allison formed a reasonable suspicion Mr. Sillars had alcohol in his body within three hours of operating a vessel and he made a demand that Mr. Sillars provide a sample of his breath into an approved screening device. He read the demand from a card he had. Sgt. Allison noted the ASD demand was made at 6:50 am. In my view the timing of the two questions and the forming of a reasonable suspicion would have taken less than a minute and conforms with the time Sgt. Allison indicated in his notebook. Sgt.

Allison agreed with the defence suggestion the request to blow across his face and whether he had anything to drink would have taken 15 seconds. [ 119 ] Mr. Sillars responded, “Just wait.” Then he said, “I’m cold” and “Won’t this get me in trouble?” Sgt. Allison believed Mr. Sillars was concerned about giving a sample. He advised Mr. Sillars it was a legal demand and explained the consequences for failing to provide a sample of his breath. [ 120 ] I find Sgt. Allison saw PCs MacDonald and Coles in the general area of the emergency area and stepped out briefly when Mr.

Sillars became somewhat uncooperative about complying with the ASD demand and instructed them to see whether there was any extra blood not needed that could be sealed by police in the hospital’s lab. This is consistent with the evidence of PCs MacDonald and Coles. [ 121 ] Mr. Sillars never refused to provide a sample of breath into the ASD and ultimately provided a suitable sample into the ASD at 6:57 pm. After the ASD processed the breath sample it registered a “Fail.” Sgt. Allison testified when an ASD registered a “Fail” this signified that the BAC was 100 mg or higher of alcohol in 100 mL of blood.

At 6:59 pm, Mr. Sillars was arrested for impaired operation of a vessel and operating a vessel with a BAC of more than 80 mg. [ 122 ] It was at this point that Sgt. Allison’s notes become somewhat problematic. His first note after the arrest of Mr. Sillars is that he read Mr. Sillars a caution from a card he carried, wherein he read: You are charged with impaired o

[…]