R. v. Tyson, 2019 ONCJ 187

CITATION: R. v. Tyson , 2019 ONCJ 187 DATE: January 22, 2019 Information No. 2811-998-18-33008-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TERRENCE TYSON P R O C E E D I N G S R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE MR. JUSTICE P.C. WEST on January 22, 2019 at OSHAWA, Ontario APPEARANCES : D. Morgan Counsel for the Crown A. Pearse Counsel for Terrence Tyson TUESDAY JANUARY 22, 2019

...all recorded, but not required R E A S O N S F O R J U D G M E N T WEST, J : (Orally) On December 14th, 2017, Mr. Terrence Tyson was charged with impaired driving and over 80 after a motor vehicle collision in Whitby, Ontario. The Crown called a number of witnesses, namely: Alexander Masdaraei, Christine Fraser, Gerald Cole, P.C. Derek Foote, P.C. Wallace Peddle, P.C. Jeffrey Bastie, Natalie Desrosiers, and finally John Kirwin. The defence called no evidence on the Charter application or on the trial proper.

The defence brought a Charter application seeking to exclude the breath samples obtained by the police and it was agreed by counsel this application could be heard by way of a blended hearing. The defence argued that any statements made by Mr. Tyson to the police at the accident scene could only be used for the purpose of determining whether there were reasonable and probable grounds to believe Mr. Tyson's ability to operate a motor vehicle was impaired by alcohol. Second, the defence argued P.C. Foote did not have reasonable and probable grounds to arrest Mr.

Tyson on the charge of impaired driving and the demand to provide breath samples were therefore not made pursuant to a valid arrest. This was a breach of Mr. Tyson's s. 8 Charter right. Third, Mr. Tyson's right to counsel under s. 10(

b) was breached by the police “funneling” him to duty counsel. During the trial defence counsel indicated he would also be alleging that Mr. Tyson's exercise of his right to counsel was not in private. Defence argued in its factum because of the ss. 8 and 10(

b) breaches the breath samples should be excluded. Mr. Pearse also argued the statements made by Mr. Tyson to P.C. Bastien, qualified breath technician, prior to his first breath sample and between the two breath samples should be excluded because of the s. 10(

b) breach. The Crown submitted there was no breach of s. 8 because P.C. Foote had reasonable and probable grounds to arrest Mr. Tyson for impaired driving. Further, Mr. Tyson requested to speak to duty counsel and after speaking to duty counsel he told the qualified breath technician he was satisfied with his conversation with duty counsel. Consequently there was no breach of

Section 10(b). The Crown submitted there being no breaches of Mr. Tyson's Charter rights, the breath samples should be admitted. The Crown also submitted the utterance by Mr. Tyson at the scene when P.C. Foote first approached him was a spontaneous utterance and therefore admissible. Mr. Tyson was not detained when he made it and therefore his utterance was admissible for the truth of what was said by Mr. Tyson. Factual Background Alexander Mazdaraei was driving northbound on Garrard Road in Whitby. He was coming to a three-way stop where Manning Road came from the east to a t-intersection.

On the east side of Garrard Road there was a field with a tree. Mr. Mazdaraei saw car lights on Manning Road travelling east towards the t-intersection. He stopped at the stop sign and then proceeded northbound. As he got to the middle of the intersection he was struck by the vehicle coming east on Manning. This vehicle drove through the stop sign on Manning Road without stopping and struck Mr. Mazdaraei's vehicle on the driver's side. The force of the impact carried both cars up onto the grassy area or field on the east side of Garrard Road. Mr. Mazdaraei's vehicle had

extensive damage to the driver's side and the driver's door could not be opened. The other vehicle, a Jeep, with licence number CCAX 836 was driven by Terrence Tyson. Mr. Tyson was identified to P.C. Foote as the driver of the Jeep by civilians on scene, as well as a paramedic. In Court Ms. Christine Fraser and Mr. Gerald Cole both identified Mr. Tyson as the person they saw exit the Jeep after the collision. Mr. Mazdaraei's driver's door had to be cut by firefighters to extricate him from his car.

He had injuries to his left leg, neck and back in terms of soreness and pain and was unable to continue his classes for a week, as well as several shifts with his work. Mr. Cole called 9-1-1 and was approached by Mr. Tyson who said to him "Dude don't call 9-1-1, no need to call the police.” Mr. Cole testified Mr. Tyson looked like a drunk, not sure when walking or it could have been he was rattled from the collision. Mr. Cole testified he was suspicious as to why the driver of the Jeep did not want him to call 9-1-1. Both Ms. Fraser and Mr. Cole testified they detected a strong odour of alcohol coming from Mr.

Tyson's breath. He was the sole occupant of the Jeep. The paramedic advised P.C. Foote she smelled alcohol coming from Mr. Tyson and it was her opinion dealing with him that he was intoxicated by alcohol. P.C. Foote and P.C. Peddle received a dispatch about the collision at Garrard and Manning just after 7:00 p.m. and they arrived at 7:19 p.m. P.C. Foote approached Mr. Tyson when he first arrived on scene and Mr. Tyson immediately said to him without being asked a question other than "How are you?", his response was "I'm going to be straight with you, I came from a pub in Oshawa. Straight up." P.C.

Foote advised Mr. Tyson he would deal with the criminal aspect of the collision and speak to him later after he was finished receiving medical treatment from EMS. P.C. Foote testified he believed Mr. Tyson was slurring his words when he was speaking to the paramedic. He observed Mr. Tyson's interaction with the paramedic where Mr. Tyson kept repeating himself and appeared to not understand her request from Mr. Tyson to sit down so she could bandage his head, which P.C. Foote agreed could have been because Mr. Tyson was impaired or as a result of the accident. P.C. Foote also testified he believed Mr.

Tyson's behaviour was off for the time he was observing him interact with the paramedic. P.C. Peddle testified he spoke to P.C. Foote about whether there were reasonable grounds to believe Mr. Tyson was impaired by alcohol. P.C. Peddle had observed Mr. Tyson being unsteady on his feet and he also observed P.C. Foote standing by while Mr. Tyson was being treated by the paramedics. P.C. Peddle observed Mr. Tyson was not co-operating with the paramedics, he was resisting being bandaged. P.C. Peddle testified he and P.C. Foote had conversation as to whether there were grounds to arrest Mr.

Tyson for impaired operation and they both agreed there was from their observations. P.C. Foote believed he had reasonable grounds to believe Mr. Tyson's ability to operate a motor vehicle was impaired by alcohol and he arrested him at 7:22 p.m. He read the right to counsel at 7:22 p.m. When he asked Mr. Tyson if he understood, Mr. Tyson said "Yes." When P.C. Foote asked if he wanted to call a lawyer now, Mr. Tyson responded "I should say yes, so yes." P.C. Foote then read the caution and the breath demand, both of which Mr. Tyson said he understood. The ambulance left with Mr. Tyson and P.C.

Foote in the rear of the ambulance with the paramedic, John Kirwin, at 7:32 p.m. On drive to the hospital P.C. Foote detected a strong odour of alcohol inside the ambulance. The paramedic asked Mr. Tyson how much he had to drink and Mr. Tyson responded "a couple of beers". The paramedic asked how many is a couple and Mr. Tyson answered "four". They arrived at the hospital at 7:48 p.m. They then waited for Mr. Tyson to be triaged in a public area and at 8:10 p.m. Mr. Tyson was booked in by registration. P.C. Foote explained to Mr. Tyson they did not have a private room for his call with a lawyer. P.C.

Foote testified when he asked Mr. Tyson who he wanted to call, Mr. Tyson told him that he did not have a lawyer. Mr. Tyson said he would speak to duty counsel. At 8:16 p.m. a call was placed to duty counsel and a message was left and at 8:21 p.m. Mr. Tyson got a private trauma room in the emergency. At 8:42 p.m. duty counsel Peter Beedka, returned P.C. Foote's call. Mr. Tyson was handed the phone and P.C. Foote left the trauma area to give Mr. Tyson privacy. P.C. Foote testified he did not overhear any of Mr. Tyson's conversation with duty counsel. It was not until 9:19 p.m. that Dr.

Moran, the emergency physician saw Mr. Tyson. His assessment was completed at 9:32 p.m. Mr.

Tyson was cleared to be able to provide breath samples and at 9:35 p.m. he was turned over to P.C. Bastien the qualified breathtechnician. P.C. Bastien testified he recorded his interactions with P.C. Tyson on his cell phone as they were in a hospital where was no videorecording equipment as in a breath room. Exhibit B is the video and Exhibit B-1 is a transcript of a portion of the recorded interactionwith P.C. Bastien. P.C. Bastien asked Mr. Tyson if he had an opportunity to speak to a lawyer. Mr. Tyson said "Yes." He then asked ifhe was satisfied with the conversation and Mr.

Tyson said "Yes." Two breath tests were conducted at 9:46 p.m. with a result of 185 milligrams of alcohol in 100 millilitres of blood and a second sample at10:09 p.m. with a result of 166 milligrams of alcohol in 100 millilitres of blood. P.C. Bastien was originally directed to set up the Intoxillyzer 8000C in a small quiet room down the hall from the emergency, but wasthen asked to leave and he ultimately set up the instrument in Mr. Tyson's trauma room. Dr. Nathalie Desrosiers, a forensic toxicologist with the Centre of Forensic Science was called as a witness.

She was qualified as anexpert on consent in the areas of blood alcohol analysis, the absorption and elimination rates of alcohol from the human body and theeffects of alcohol on a person's intellectual faculties and their ability to operate a motor vehicle. She projected Mr. Tyson's blood alcoholconcentration between 7:00 and 7:22 p.m. to be between 165 to 220 milligrams of alcohol in 100 millilitres of blood. Her report was filedas Exhibit 4.

She testified it was her expert opinion anyone who had a blood alcohol concentration of 50 milligrams of alcohol in 100millilitres of blood would be impaired in respect of their ability to operate a motor vehicle. As the BAC increases so would the degree ofimpairment. Was utterance made by Mr. Tyson at scene admissible? On the evidence Mr. Tyson was not detained when he said "I'm going to be straight up with you I came from a pub in Oshawa. Straightup". P.C. Foote did not stop Mr. Tyson's car. It was involved in a collision with Mr. Mazdaraei's car. Mr. Tyson was being attended toby a paramedic for a head injury.

P.C. Foot advised Mr. Tyson he should receive medical treatment first before the officer began toinvestigate the collision. It was only after P.C. Tyson was finished being treated that P.C. Foote arrested him and provided him with theright to counsel. In my view R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32, is applicable to the circumstances presented in this case, where thepolice are dispatched to a motor vehicle accident to investigate the circumstances. The comments of Chief Justice McLachlin and JusticeCharron in R. v.

Grant, supra, at para 38 and 41, in my view apply to these early investigative steps of P.C.s Foote and Peddle when theyfirst arrive on scene: 38 In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may findthemselves asking questions of a person who was implicated in the occurrence and, consequently, is at risk of self-incrimination. Thisdoes not preclude the police from continuing to question the person in the pursuit of their investigation.

Section 9 of the Charter does notrequire that police abstain from interacting with members of the public until they have specific grounds to connect the individual to thecommission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligationto speak to them and are entitled to legal counsel. 41 As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice.

On the other hand, suchinquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particularindividual. Focused suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on thatsuspicion, interacted with the suspect. The language of the Charter does not confine detention to situations where a person is in potentialjeopardy of arrest.

However, this is a factor that may help to determine whether in a particular circumstance, a reasonable person wouldconclude he or she had no choice but to comply with the police officer's request. The police must be mindful that depending on how theyact and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or sheis not free to choose to walk away or decline to answer questions.

On the facts of this case it was not until P.C. Foote was advised by the paramedic she believed Mr. Tyson was intoxicated, the witnessesdescribed observing the odour of alcohol coming from Mr. Tyson, the circumstances of the accident and the personal observations of Mr.Tyson that P.C. Foote observed as well as P.C. Peddle, which they discussed together, that he testified he had reasonable grounds tobelieve Mr. Tyson's ability to operate a motor vehicle was impaired by alcohol. This all crystallized while Mr. Tyson was beingmedically treated and examined by the paramedics at the ambulance.

The utterance in question was prior to P.C. Foote reaching thisdecision. Mr. Pearse advised he was not seeking to exclude the utterance of Mr. Tyson pursuant to R. v. White, (SCC), [1999] 2S.C.R. 417 (S.C.C.). In my view Mr. Tyson's utterance was a spontaneous utterance made by Mr. Tyson before he was under detention,either psychological or actual physical detention. Again, Mr. Tyson did not testify, which was his right, however, it would be purespeculation to find Mr. Tyson felt compelled in any way to say what he said. In fact, given the nature of what was said by Mr.

Tyson, Ifind it was made by him spontaneously. Did P.C. Foote have reasonable and probable grounds to arrest Mr. Tyson for impaired operation? If not, was s. 8 breached? Ifso, should the breath samples be excluded pursuant to s. 24(2)? Mr. Pearse argued P.C. Foot did not have reasonable grounds to believe Mr. Tyson's ability to operate a motor vehicle was impaired byalcohol and arrest him for this offence. Consequently, the arrest of Mr. Tyson was illegal and the breath demand and the obtaining ofbreath samples was a breach of Mr. Blain's (???) ss. 7, 8 and 9 Charter rights.

The taking of the Intoxilyzer breath samples was a warrantless search and consequently, the onus is on the Crown to establish the seizurewas reasonable on a balance of probabilities. R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at para. 22. Section 243(3)authorizes an office to make an Intoxilyzer breath demand if he or she has reasonable grounds to believe that person is committing or hascommitted at any time within the preceding three hours the offence or having care or control of a motor vehicle while impaired or havingconsumed excess alcohol.

When the demand is made the officer must subjectively have an honest belief based on reasonable andprobable grounds. In addition, that belief must be objectively reasonable on the basis of the information known to the officer at the timeof the demand. R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87, R. v. Bush (2010), 2010 ONCA 554 , 101 O.R.(3d) 641 CC.A.). In R. v. Suntharalingham, 2012 ONSC 6207 , [2012] O.J.

No. 5145 (SCJ, Campbell J.,) at para 20: To establish the "reasonable and probable grounds" necessary to justify the arrest of an accused or a demand for breath samples, a policeofficer must have subjectively had an "honest belief" which was objectively based on reasonable and probable grounds.

Accordingly, thes. 8 Charter issue in the present case turns on the question or whether, on the basis of the record before the court, a reasonable personplaced in the circumstances of Constable Ireland could conclude that there were reasonable and probable grounds to believe that theappellant's ability to operate a motor vehicle was impaired by alcohol on the evening in question. See: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at p. 250; R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, at para.17; R. v. Berlinski, (ON CA), [2001] O.J. No. 377 (C.A.) at para. 3. In R. v.

Censoni, [2001] O.J. No. 5189 (SCJ Hill J.) at paras. 35 & 43: 35 In reviewing the objective component of reasonable grounds, the question is whether the officer's opinion was supported byobjective facts: R. v. Berlinski, (ON CA), [2001] O.J. No. 377 C.A.) at para 3 per curiam. The existence of a"constellation of objectively discernible facts", spoken of by Doherty J.A. in R. v. Simpson (1993), (ON CA), 79C.C.C. (3d) 482 (Ont. C.A.) at 501 in discussing "articulable cause", is also a necessary feature of reasonable grounds: R. v. Hall,[(1995), (ON CA), 39 C.R. (4th) 66 (Ont. C.A.)] at 74-75. In Storrey v.

The Queen, supra at 324, Cory J. spoke of areasonable person standing in the shoes of the police officer believing reasonable and probable grounds exited. This was the approachfollowed in R. v. Hall, supra at 77 and to this end, in R. v. Oduneye (1995), 1995 ABCA 295 , 15 M.V.R. (3d) 161 (Alta. C.A.)at 168-9, the Court accepted the existence of objective reasonable grounds must be based on facts known by or available to the peace

officer at the time he or she formed the belief. 43 Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to thecontext of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom, All too often, however, thedefendant invites the trial court to engage in minute decisions of the officer's opinion – an opinion developed on the spot withoutthe luxury of judicial reflection. [Emphasis added] This undoubtedly led McFadyen J.A. in R. v.

McClelland, supra at 517 to observe: It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's beliefwas reasonable. In R. v. Wang, 2010 ONCA 435 , [2010] O.J. No. 2490 (C.A.), at paras. 17, 20 & 21, the Ontario Court of Appeal, relying on R.v.

Shepherd,2009 SCC 35 , [2009] 2 S.C.R. 527 made the following observations concerning the forming of reasonable andprobable grounds by a police officer: ...where a Court is satisfied that the office had the requisite subjective belief, the sole remaining issue is whether that belief wasreasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established.

Rather, when theimpaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support theofficer's subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree by alcohol: See R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90 (C.A.) aff'd (SCC), [1994] 2 S.C.R. 478. In R. v. Bush, supra, Durno, J., delivering the judgment of the Ontario Court of Appeal, summarized the proper approach to be taken bytrial judges in assessing whether the necessary reasonable and probable grounds exist. In R. v.

Suntharalingham, supra, Campbell J.summarized this approach as follows in para. 21: 1. The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonabledoubt". Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even theestablishment of a prima facie case. See: R. v. Bush, at para. 36-37. See also: R. v. Censoni, at para. 30-31; R. v. Shepherd, at para. 23;R. v. Baron (1993), 79 C.C.C. (3d) 510 (S.C.C.) at ppp. 53 -532. 2.

In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is "not an onerous test". It must not be "inflated to the context of testing trial evidence," but neither must it be " so diluted as to threaten individual freedom." SeeR. v. Bush, at para. 46. See also: R. v. Wang, at para. 17; R. v. Censoni, at para. 43. 3. There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probablegrounds to effect an arrest.

Indeed, impairment may be es​tablished where the Crown proves "any degree of impairment from slight togreat." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impactingupon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. Accordingly, to justify anarrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that theaccused's ability to drive was "slightly impaired" by alcohol. [A number of judgments are cited.] 4.

In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked toengage in a “dissection” of the officer’s grounds by looking at each ground in isolation, and without appreciating that the opinions of theofficer were developed at the scene “without the luxury of judicial reflection.” Yet it is “neither necessary nor desirable” to conduct animpaired driving trial as if it were a “threshold exercise in determining whether the officer’s belief was reasonable.” [He then provides anumber of cites to support that proposition.] 5.

An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent ofan “impaired driver scorecard,” with a list of all the “usual indicia of impairment” and counsel conducting an inventory as to whichindicia are present and which are absent as part of the essential assessment. Indeed, there is “no mathematical formula” whereby thepolice officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessaryreasonable and probable grounds are objectively present.

The absence of some indicia that are often found in impaired drivers does notnecessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of thecircumstances of the case. [He cites Bush, Censoni, Costello – a decision of the Court of Appeal of Ontario and Wang.]

6. A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See: R. v. Bush , para. 61 and R. v. Censoni , at paras. 36-37. I adopt the reasons set out above. As a matter of interest, recent decision by Justice Paciocco in R. v. Notaro , [2018] O.J. No. 2537 (C.A.) , recently reaffirmed the principles set out above.

In the present case, P.C. Foote relied on the following observations and information known to him in forming his subjective belief he had reasonable and probable grounds. 1 . P.C. Foote was advised by dispatch of a two car collision at Garrard and Manning in Whitby at a three-way stop or t-intersection. 2 . When P.C. Foote arrived on scene he observed a Jeep up against a tree on a grassy area on the east side of Garrard across from Manning where there was a stop sign.

There was also another black vehicle with extensive damage to its driver’s side on the grassy area and the drive was being extricated by use of the Jaws of Life by firefighters. 3 . P.C. Foote spoke to civilians on scene who pointed out Mr. Tyson as the driver of the Jeep who was receiving medical treatment by a female paramedic. He was advised these witnesses had detected alcohol coming from Mr. Tyson. 4 . P.C. Foot went to where Mr. Tyson was being treated and he advised he would speak to Mr. Tyson after he was treated by EMS. Mr. Tyson said to P.C.

Foote, “I’m going to be straight with you, I came from a pub in Oshawa. Straight up.” 5 . P.C. foot made observations of Mr. Tyson as he interacted with the paramedic. He observed Mr. Tyson’s speech was slurred. He observed Mr. Tyson’s interaction with the paramedic, where Mr. Tyson kept repeating himself and appeared to not understand her request for Mr. Tyson to sit down so she could bandage his head, which P.C. Foote agreed could have been because Mr. Tyson was impaired or as a result of the accident. P.C. Foote also testified he believe Mr.

Tyson’s demeanour was off for the time he was observing him interact with the paramedic. 6 . P.C. Foote received information from the paramedic that she believe Mr. Tyson was intoxicated by alcohol. 7 . P.C. Foote and P.C. Peddle spoke to each other about whether grounds existed to arrest Mr. Tyson for impaired operation. P.C. Peddle had observed Mr. Tyson being unsteady on his feet. He also confirmed Mr. Tyson being uncooperative with the paramedic who was trying to bandage his cut to his head. 8 . Both P.C. Foote and P.C. Peddle agreed there were grounds to arrest Tyson for impaired. I have no doubt P.C.

Foot subjectively believed he had reasonable grounds to arrest Mr. Tyson. I found P.C. Foote to b e a reliable and credible witness whose evidence was supported by the other witnesses who testified. It is my view based on the totality of the observations and information provided to P.C. Foote, together with the accident scene and the damage he observed to the two vehicles, a reasonable person standing in the shoes of P.C. Foot would believe reasonable and probable grounds existed for the arrest of Mr. Tyson on a charge of operating a motor vehicle while his ability was impaired by alcohol.

I find these facts are sufficient, at law, to objectively support the officer’s subjective belief that Mr. Tyson was driving while impaired by alcohol. Consequently, the Charter application pursuant to s. 8 is dismissed.

Was Mr. Tyson’s s. 10(

b) right infringed because he was not afforded counsel of choice? It is important to note that Mr. Tyson bears the onus of proving a breach of his s. 10 Charter rights on a balance of probabilities. Mr.Pearse submitted the police “funneled” Mr Tyson to duty counsel and consequently, they breached his Charter rights under s. 10(

b) ofthe Charter. Mr. Pearse did not take any issue with the wording of the right to counsel contained in the back of P.C. Foote’s policenotebook. The standard right to counsel advises a detainee they have the right to telephone any lawyer they wish, without delay and theyalso have the right to free advice from a legal aid lawyer and a toll-free number is provided.

Section 10(

b) of the Charter is comprised of two components: an informational component and an implementational component: See R.v. Bartle (SCC), [1994], 3 S.C.R. 173 at p. 192. Ordinarily, the infor​mational component only requires the police toinform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid andduty counsel: see Bartle supra; R. v. Devries 2009 ONCA 477 , [2009], O.J. No. 2421 (C.A.) at paras. 21-23 & 28 and R. v.Willier 2010 SCC 37 , [2010], 2 S.C.R., 429 at paras. 29-30 In R. v.

Brydges (1990), (SCC), 53 C.C.C. (3d) 330 (S.C.C.), the Supreme Court held the police must give a detaineehis rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decisionabout speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation tofacilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from thedetainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v.

Manninen (1987), C.C.C. (3d) 265(S.C.C.) at p. 391. The Supreme Court of Canada has consistently held since R. v. Baig, (SCC), [1987] 2 S.C.R. 537, that theimplementation duties of the police “are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel”:R. v. Bartle; R. v. Willier, and R. v. Taylor, 2014 SCC 50 , [2014] 2 S.C.R. 495, at paras. 23-24. The Ontario Court of Appealhas also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller,2012 ONCA 565 at para. 17.

The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact:R. v. Backhouse, (ON CA), [2005] O.J. No. 754 (C.A.) at paras. 77-78 and R. v. Owens, 2015 ONCA 652 ,[2015] O.J. No. 4972 (C.A. at para. 28. In R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310 at para. 27, the Supreme Court has also made it clear the implementationalduties of the police flowing from s. 10(

b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in itsexercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence willeither not arise in the first place or will be suspended. This has been recently confirmed in R. v. Owens, supra, at para. 25. See also R. v.Burlingham, (1995), 97 C.C.C. (3d) 305 (S.C.C.) at para. 16, R. v. Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) atpara. 135 and R. v. Richfield, (ON CA), [2003] O.J. No. 3230 (C.A.). P.C. Foote attended where Mr.

Tyson was receiving medical assistance from the paramedics on scene. It was clear there had been amotor vehicle accident involving two vehicles, a Jeep was up against a tree in the grassy area on the east side of Garrard Road. A smallblack car was on the grassy area with extensive damage to the driver’s side and the firefighters were attempted to extricate the driverusing the Jaws of Life. The driver of this vehicle was conscious and sitting in the driver’s seat. Mr. Tyson was being medically treatedby a paramedic. He had a cut to the top of his head and had blood running down his face. P.C.

Foote had witnesses point out Mr. Tysonas being the driver of the Jeep. P.C. Foote was in uniform and when he approached the EMS vehicle, Mr. Tyson spoke to him saying“I’m going to be straight with you, I was at a pub. I’m being straight.” P.C. Foote advised Mr. Tyson he was going to allow theparamedics to finish dealing with him and then he would speak to him concerning the accident. P.C. Foote spoke to the witnesses who described the Jeep not stopping for the stop sign on Manning Road, as he was proceedingeastbound. P.C. Foot detected an odour of alcohol coming from Mr. Tyson. The paramedic advised P.C.

Foot she believed Mr. Tysonwas intoxicated. The witnesses described smelling alcohol coming from Mr. Tyson. P.C. Foote observed Mr. Tyson dealing with theparamedic. He was being uncooperative, it appeared he did not understand the directions of the paramedic who was trying to get Mr.Tyson to allow him to put a bandage on the cut on his head. P.C. Foot was of the view Mr. Tyson’s speech was slurred. P.C. Peddletestified he also observed Mr. Tyson at the scene dealing with the paramedics. He observed Mr. Tyson to be unsteady on his feet and totrip over his feet when he walked. P.C. Foote advised P.C.

Peddle he had grounds to arrest Mr. Tyson for impaired operation. When the paramedics advised they were finished with Mr. Tyson, P.C. Foote advised him he was under arrest for impaired operation of

a motor vehicle. After arresting Mr. Tyson for impaired at 7:22 p.m., P.C. Foote read Mr. Tyson his right to counsel from the back of hispolice notebook. He read the right to counsel verbatim: 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 anylawyer 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 theOntario Legal Aid Plan for assistance. 1-800-265-0451 is the a number that will put you in contact with legal aid duty counsel for freelegal advice right now.

Do you understand? P.C. Foot asked Mr. Tyson if he understood his right to counsel and Mr. Tyson responded, “Yes.” When he was asked “Do you want tocall a lawyer now?” Mr. Tyson responded, “I’m going to be told to speak to one so yes.” In cross-examination P.C. Foote testified whenhe asked Mr. Tyson which lawyer he wanted to call Mr. Tyson said he did not have a lawyer. P.C. Foot reiterated there was duty counselhe could call and Mr. Tyson opted to speak to duty counsel. P.C. Foote also read Mr. Tyson a caution from the back of his police notebook and the formal breath demand. Mr.

Tyson indicated heunderstood the caution and breath demand. Mr. Tyson was then transported to the Oshawa Hospital, Lakeridge Health. P.C. Foote gotinto the back of the ambulance as Mr. Tyson was under arrest. Once they got to the hospital at 7:48 p.m., P.C. Foote had to wait until Mr. Tyson was triaged and was moved from the triage area to amore private room in the trauma area of the emergency department. Once Mr. Tyson was placed into a trauma room a call was made toduty counsel by P.C. Foote and he left a message. Duty counsel, Peter Beedka called back at 8:42 p.m. Mr. Tyson spoke to duty counseluntil 8:45 p.m.

The defence Charter application alleges Sergeant Allison “funnelled” or “steered” Mr. Tyson towards duty counsel and did not advisehim he had the right to make inquiries which would enable him to identify, select and contact private counsel and then to be given thenecessary means to do so. It was Mr. Pearse’s submission the police failed to get a proper waiver from Mr Tyson, citing R. v. Prosper(1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.). He argued Mr. Tyson was directed to speak to duty counsel by the police. The defence submitted the police breached both the informational and implementational duties.

The Crown submitted the police did not breach Mr. Tyson’s right to counsel as he decided he wanted to speak to duty counsel. Thepolice implemented his right to counsel by contacting the 1-800 number and left a message. When duty counsel, Peter Beedka calledback P.C. Foote stepped away from the Trauma Room where Mr. Tyson was and pulled the curtain or divider across. The Crownsubmitted P.C. Foote provided Mr. Tyson with the best privacy in the circumstances considering Mr. Tyson was in a hospital receivingmedical treatment because of the car accident. Further, Mr.

Tyson spoke to duty counsel, expressed no complain about duty counsel toany of the police officers and in fact told P.C. Bastien, the qualified breath technician, he was happy with the conversation he had withduty counsel. Analysis Dealing with the defence submission that Mr. Tyson was funneled or steered by P.C. Foote to duty counsel. First, this is not a case where Mr. Tyson requested to speak to a specific lawyer but did not have the lawyer’s phone number. This wasalso not a case where Mr. Tyson requested to call a friend or family member to obtain the name of a lawyer.

The only evidence on thistrial is that Mr. Tyson did not have a lawyer that he asked P.C. Foote to call on his behalf. P.C. Foote testified Mr. Tyson said he did nothave a lawyer when P.C. asked him which lawyer he wanted P.C. Foot to contact. As a result, P.C. Foote testified he asked Mr. Tyson ifhe wanted to call duty counsel, which was a free lawyer available by calling a 1-800 number. According to P.C. Foote, Mr. Tysondecided he wanted to call duty counsel. On the evidence this was not a case where Mr.

Tyson requested to speak to counsel of choice ora friend/family member to get the name of a lawyer, rather, according to P.C. Foote’s evidence Mr. Tyson requested to speak to dutycounsel and he was put into contact and was able to speak to duty counsel. Second, Mr. Tyson chose not to testify on the blended hearing dealing with the Charter applications, which was his right. I just drawattention to a decision of my colleague, Justice Burstein in R. v. Manuel, [2018] O.J. No 2955 at para. 34:

In contrast to Zoghaib (which I will refer to later in more detail), more recent decisions from this Court have held that in the face of s.10(

b) informational or implementational failings) a de​tainee may be able to demonstrate that their mistaken belief about duty counselhaving been the only choice was attributable to the actions or inaction of the police. And then he continues: Of course where an accused fails to testify or their testimony has been rejected, that accused is unlikely to meet their burden ofdemonstrating a s. 10(

b) violation. Justice Burstein then refers to two decisions from the Ontario Court of Justice, one which is a decision of my colleague Justice Javed inR. v. Ablack, [2016] O.J. No. 2597 (OCJ). Unfortunately I do not have any evidence from Mr. Tyson as to what his intentions were respecting his rights to counsel and therefore theevidentiary basis for the defence allegation must be inferred from the evidence adduced on the blended hearing. The defence submittedP.C. Foote did provide Mr. Tyson with the yellow pages or provide him access to the internet to search for a private lawyer. Mr.

Pearsewas not able to provide me with any binding authority that there is an obligation on the police to provide a phonebook, yellow pages or asmart cell phone with data or a computer to allow a detainee to search for a criminal lawyer where they request to speak to a lawyer, butdo not know of one. It is my view there are many binding authorities, which stand for the exact opposite, many of which I have referredto above.

If a detainee request to look in their cell phone to find a lawyer or wants to call a member of their family or a friend to get thename of a lawyer, it is my view the police have a positive obligation of doing everything within their power to facilitate that contact. This type of evidence was non-existent in this case. In my view a further difficulty with this submission, is it would be pure speculationto find Mr. Tyson wanted the opportunity to try to find his own private counsel as there is no evidence upon which to find there was areasonable inference that he would have taken advantage of such an offer.

Third, it was clear from the evidence that P.C. Foote was not overbearing or abrasive or dismissive in his dealings with Mr. Tyson. There was no evidence suggesting that Mr. Tyson was anything but polite and courteous towards the police and I draw the reasonableinference P.C. Foote and Mr. Tyson were not at odds with each other, rather, they got along with each other despite the circumstances. This leads to the reasonable inference that P.C. Foote had no motive for ignoring Mr. Tyson’s requests, if in fact he made any, and thenfunnelling Mr. Tyson to duty counsel. Fourth, the test is not whether P.C.

Foote could have done more for Mr. Tyson in obtaining a phonebook from the detachment or usinghis own cell phone’s data to look up the names and phone numbers of criminal lawyers. The question is whether P.C. Foote providedMr. Tyson with the information required to assist him in exercising the rights to counsel, and whether he facilitate that contact (see R. v.Winterfield, 2010 ONSC 1288 , [2010] O.J. No. 952 (SCJ, Durno

J) at para. 62 and R. v. Gentile, [2008] O.J. No 3664 (SCJ) atpara. 24.). P.C. Foote did facilitate contact with duty counsel and Mr. Tyson received legal advice from duty counsel. In R. v. Winterfield, supra, Justice Durno held there is no automatic breach of the right to counsel if the detainee speaks to duty counselafter unsuccessfully seeking to contact their own counsel: R. v. Littleford, [2001] O.J. No 24373, and R. v. Mayo (1999), (ON CA), 133 C.C.C. (3d) 168 which is also a decision of the Ontario Court of Appeal. Mr. Pearse did not allege in his cross-examination of P.C.

Foote that he had deliberately ignored Mr. Tyson’s request to speak to a specific lawyer. There was no allegationduring his questioning that P.C. Foote in any way deliberately did anything to subvert or prevent Mr. Tyson from obtaining legal advice. Mr. Pearse argued there was no “valid waiver” by Mr. Tyson as he was not given a “reasonable opportunity” to exercise his right tocounsel.

It is my view, based on the authorities referred to above, Bartle, Manninen, Brydges, Baig, Willier, Devries and Sinclair that the policeneed only advise a detainee of his right to retain and instruct counsel without delay, that he can call any lawyer he wishes and to informthe detainee of the availability of Legal Aid and free duty counsel. This was not a situation where the detainee was waiving his right tocounsel as discussed in Bartle. Further, the case of Prosper, supra, has no application to the factual circumstances and context of Mr.Tyson’s case.

In Prosper, supra, the accused requested to speak to a specific lawyer. The police attempted to contact that lawyer byleaving messages at a number provided but after a period of time had elapsed the police advised the accused his lawyer was not callingback and what did he wish to do.

In Prosper, at p. 274, Chief Justice Lamer described the required Prosper warning and its legal triggersin this way: I find that an additional informational obligation on police will be triggered once a detainee who has previously asserted the right tocounsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, the police are required totell the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time

not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had thatreasonable opportunity. P.C. Foote did what the jurisprudence required him to do in terms of the informational and impleme​ntation components. In my view Mr.Tyson did not waive his right to speak to counsel, in fact he did speak to counsel – duty counsel.

It is not so long ago that the Canadian Charter of Rights and Freedoms did not exist and when it was first made the law of Canada it wasextremely difficult to put detainees in contact with a lawyer, particularly since 24 hour duty counsel did not exist. In fact, it was not untilBrydges, supra, in 1990 where the Supreme Court of Canada extended the informational component of s. 10(

b) to include therequirement that the detainee must be informed of the existence and availability of duty counsel through Legal Aid, and the availabilityof 24 hour, seven days a week, immediate free legal advice to everyone through duty counsel services assuming those services existed inthe jurisdiction. The importance of free duty counsel was reiterated in Bartle. In Devries the Ontario Court of Appeal held: The requirement that all detainees must be told of the existence and means of accessing duty counsel and Legal Aid gives theconstitutional right to counsel found in s. 10(

b) real meaning. The right would be hollow for those unaware of how they might obtainimmediate legal assistance if they were given no information by the authorities as to how to access legal assistance. Nor, given thedynamics at play in a detention situation, should the onus be on the detainee to make enquiries as to how he or she might exercise theconstitutional right to counsel.

Brydges and Bartle ensure that all detainees have sufficient information to make an informed decision asto whether to speak with counsel before submitting to police interrogation or testing. [Emphasis added] It is difficult to reconcile the attitude that has developed in recent years where duty counsel are treated as second class incompetentlawyers with the comments made in Brydges, Bartle and Devries concerning the important of the immediate free legal advice throughthe toll-free number, which conveys the necessary immediacy and universal availability of legal assistance.

No cases were cited by Mr.Pearse which placed a requirement on police officers to assist detainees who do not know any criminal lawyers or do not have a “counselof choice” with searching and trying to locate and then contact private counsel. This requirement is nowhere to be found in thejurisprudence from the Supreme Court of Canada and the Ontario Court of Appeal. In fact, all this requirement will do is delay access tocounsel where the detainee does not have a “counsel of choice” or even known the name of a criminal lawyer. There was no evidence from which I could find Mr. Tyson was “funnelled” to duty counsel.

P.C. Foote testified Mr. Tyson indicated hewas going to be told to speak to a lawyer so he might as well but he did not have a lawyer and he decided to speak to duty counsel, whichhe did. As I have indicated, it is my view the jurisprudence from the Supreme Court of Canada and the Ontario Court of Appeal does notput any additional obligations on the police to provide detainees with phone books or computers to assist them in finding and contactingprivate lawyers they are not aware of when they are detained or arrested.

Where a detainee requests to speak to a specific lawyer it is myview the police do not have an obligation to make reasonable efforts to contact that lawyer on behalf of the detainee. However, even thatobligation has its limitations, see R. v. Black, [1989] 2 S.C.R. 130, per Wilson J. at pp. 154-155. Where a detainee, like Mr. Tyson, has been put in touch with duty counsel and received legal advice and made no complaint about theadvice provided, it is my view the Supreme Court of Canada’s decision in R. v. Willier, supra, at paras. 33 & 41-43 governs.

In that casethe Supreme Court held where there was no complaint by a detainee as to the legal advice provided, the police were entitled to assumethe accused was satisfied and to continue with their investigation, in this case, the obtaining of breath samples. 33 Detainees who choose to exercise their s. 10(

b) right by contacting a lawyer trigger the implementational duties of the police. Theseduties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning thedetainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligencein attempting to contact counsel: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, supra, R. v. Smith, (SCC), [1989] 2 S.C.R. 368.

What constitutes reasonable diligence in the exercise of the right to contact counsel will dependon the context of the particular circumstances as a whole. As Wilson, J. stated in Black, supra, at pp 154-55: A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if hewishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain fromquestioning the accused are suspended: see R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435. 41 While s. 10(

b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it doesnot require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence,

premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to beresponsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would beincompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard ofadvice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicablestandard of adequacy is unclear. As this Court recognized in R. v.

G.D.B., 2000 SCC 22 , [2000] 1 S.C.R. 520, at para. 27, thereis a “wide range of reasonable professional assistance”, and as such what is considered reasonable, sufficient, or adequate advice is illdefined and highly variable. 42 As noted, s. 10(

b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them.However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assumethat the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case,despite the brevity of Mr. Willier’s conversations with Legal Aid, Mr. Willier gave no indication that these consultations wereinadequate.

Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr.Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel,remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advicewas inadequate because of its brevity. A s. 10(

b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier’slegal advice. [Emphasis added] 43 Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did notsuffer a violation of his s. 10(

b) right to counsel. In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity toconsult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt tocall Mr. Royal. When Mr. Willier stated his preference to wait, Constable Lahale reasonably informed him that it was unlikely that Mr.Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel, Mr.Willier was not told that he could not wait to hear back from Mr.

Royal, or that Legal Aid was his only recourse. There is no indicationthat his choice to call duty counsel was the product of coercion. The police had an information duty to ensure that Mr. Willier was awareof the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contactcounsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily choseto exercise. See R. v. Littleford, supra; R. v. Winterfield, supra; R. v. Wilson, [2016] O.J. No. 183 (OCJ, Duncan

J) and R. v. Blackett [2006] O.J. No.2899 (SCJ, Ferguson J.). In R. v. Zoghaib [2005] O.J. No. 5947 (SCJ) aff’d [2006] O.J. No. 1023 (C.A.) the Court of Appeal said the following in a briefendorsement: We are in substantial agreement with the analysis of the

Summary Conviction Appeal Court. The appellant was fully advised of her rightto counsel at the roadside and understood those rights. On the finding of fact me by the trial judge, any subsequent misapprehension bythe appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none ofwhich were conveyed to or known by the officer. The

Summary Conviction Appeal Court correctly held that as a matter of law theappellant’s unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(

b) of the Charter [Emphasis added]. See also R. v. Papanastasiou, [2014] O.J. No. 3447 (OCJ, De Filippis at para. 22), which is a decision of Justice De Filippis in this courtand R. v. Ablack, supra. On the facts of Mr. Tyson’s case I do know what was going on in Mr. Tyson’s mind concerning his being able to speak to duty counselbecause he was asked by P.C. Bastien if he was happy with his conversation with duty counsel and he replied, “Yes.” Based on thetotality of the evidence I do not find Mr. Tyson has met his onus to prove a breach of his s. 10(

b) Charter rights. Was Mr. Tyson able to exercise his right to counsel in private? This issue was raised during the course of the evidence at trial.

In R. v. Playford, (ON CA), [1987] O.J. No. 1107 (C.A.) at para. 38, Goodman J.A. held: An accused who believes that his conversation will be overheard by the police will of course be substantially prejudiced in making use ofhis right to retain and instruct counsel. That does not mean, of course, that every accused who has such belief no matter howunreasonable, can assert that his right to retain and instruct counsel has been infringed.

Where the circumstances are such that anaccused would reasonably believe that his conversation to retain or instruct counsel could be overheard by police, it cannot be said thathis right to privacy has not been infringed unless it can be shown that he has in fact been able to retain and instruct counsel privately. The issue of adequate privacy in a hospital was first considered by O’Connor J. in R. v. Turriff, [1998] O.J. No. 4818 (SCJ) affd [2000]O.J. No. 1522 (C.A.).

The facts of Turriff were that the police arrested the accused for impaired operation causing bodily harm after hewas involved in a head on collision. The accused indicated he wanted to speak to a lawyer after he was given his right to counsel. Afterarriving at the hospital the investigating officer called duty counsel and when duty counsel called back, the officer wheeled Mr. Turriff’sbed from the treatment room to where a phone was located in a hallway. Mr. Turriff moved approximately 30 feet from Mr. Turriff’slocation. At no time did Mr.

Turriff indicate to the officers his privacy during his call with duty counsel had been violated. O’Connor J.found: The issue is not the distance involved. It is whether Mr. Turriff was afforded his Charter right to a reasonable opportunity to consultwith counsel, which means, consultation, in private. The courts must consider the necessary factual context in deciding whether the statehas infringed upon a detainee’s right to counsel. There are no hard and fast rules that apply in all cases. Here, I accept the evidence ofP.C.

Glennie and Constable Brazier, the latter notwithstanding his considerable inaccuracy about his distance from Mr. Turriff, that theycould not hear Mr. Turriff’s conversation with duty counsel. In the circumstances in which the police found themselves, andunderstanding their obligations under s. 10(

b) of the Charter, they afforded Mr. Turriff the best accommodation possible. I find Mr.Turriff has not proven on a balance of probabilities his s. 10(

b) Charter rights were infringed by the police because of the manner inwhich they permitted him contact with duty counsel. The Ontario Court of Appeal upheld O’Connor J.’s finding that Mr. Turriff’s Charter rights had not been breached in R. v. Turriff. In asubsequent case, R. v. Burley (ON CA), [2004] O.J.

No. 319 (C.A.) the Ontario Court of Appeal held the “individualfactual context must be considered in each case.” In Burley the Court dealt with whether “a degree of diligence on the part of theaccused should be expected in relation to consulting counsel.” In answering this question Chief Justice McMurtry, for the Court,referred to Bartle v. The Queen, where the Supreme Court decided that the accused’s s. 10(

b) rights had been infringed when he was notadvised of the availability of Legal Aid duty counsel. In Bartle, Chief Justice Lamer held, at para. 18: Importantly, the right to counsel under s. 10(

b) is not absolute. Unless a detainee invokes the right and is reasonably diligent inexercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either notarise in the first place or will be suspended. Chief Justice McMurty also made reference to R. v. Richfield, supra, where Weiler J.A. stated at para 7: Whether legal advice has been sought diligently by the detained person depends on the context of the situation. In Burley, the Ontario Court of Appeal held in determining whether there has been a s. 10(

b) breach, the Court must examine the totalityof the circumstances (see para. 24). In this case the accused was placed in a room with either no door or the door was left open to speakto duty counsel. The officer left the accused in the room by himself and stood approximately 20 feet away down a hallway. The officertestified he had a sightline of the doorway of the room, but could not hear or see the accused. The accused spoke to the duty counsel forfive or six minutes. At no time did the accused tell the officer he was concerned about his privacy.

The accused did not ask for the doorto be closed, nor did he request an opportunity to make a second call to counsel. The trial judge had found a breach of the accused’s s.10(

b) rights as the accused was not able to retain and instruct counsel in private and pursuant to s. 24(2) he excluded all evidenceobtained by the police after the breach, including the breath readings, which resulted in an acquittal of all charges. The Court of Appealallowed the Crown appeal and ordered a new trial. Chief Justice McMurtry cited R. v. Cairns (ON CA), [2004] O.J. No. 210 (C.A. at para. 101 with approval: It is the appellant who bears the burden of establishing, on the balance of probabilities, that her charter right has been violated. In cases

where there is no actual invasion of privacy, there may still be a breach of s. 10(

b) where the accused establishes that he or she believedthat he or she could not retain and instruct counsel in private and further, that such a belief was reasonably held in the circumstances. In the case at bar, considering the totality of the evidence, I find Mr. Tyson has not proven a breach of his s. 10(

b) right to counsel on abalance of probabilities that his exercise of his right counsel was not in privacy. The only evidence I have on this trial is that P.C. Foote waited until Mr. Tyson was moved from the triage area where there were manymembers of the public to a private trauma room in the Emergency Department. Once Mr. Tyson was moved to this location P.C. Footebegan implementing Mr. Tyson’s right to counsel by telephoning duty counsel and leaving a message. Duty counsel returned the call at7:42 p.m. Mr Tyson was provided with a phone to speak to duty counsel and P.C.

Foote testified he closed the curtain or partition toprovide privacy to Mr. Tyson and walked away to a spot where he was unable to hear what was being said by Mr. Tyson. Again, Mr. Tyson did not testify, as was his right, but I do not know whether he subjectively believe his conversation with duty counselcould be overheard by the police or the hospital staff and was therefore substantially prejudiced in exercising his right to counsel. In a hospital setting, the need to provide access to counsel in private may be more challenging for police than it would be at a policestation.

However, a hospital is not a Charter free zone, and the police have an obligation under s. 10b) to take reasonable steps tofacilitate access to counsel in private at the first reasonable opportunity: R. v. Taylor, supra, at para. 34, a decision of the Supreme Courtof Canada. However, on the facts before me I do not have any evidence to suggest Mr. Tyson’s exercise of his right to counsel was not in private. Inthe circumstances of this case I do not believe Mr. Tyson has satisfied me on a balance of probabilities that his right to counsel in privatewas breached. Trial Proper The breath samples obtained by P.C.

Bastien are admissible as a result of the ss 8, 9 and 10(

b) Charter applications being dismissed. The certificate of a qualified breath technician, P.C. Bastien will be marked as Exhibit 5. Consequently, the evidence of Dr. Desrosiers projecting Mr. Tyson’s blood alcohol concentration back to between 7 p.m. and 7:22 p.m.is admitted. Mr. Tyson is therefore found guilty of the over 80 charge as Dr. Desrosiers’ evidence was Mr. Tyson’s BAC was at least165 milligrams of alcohol in 100 millilitres of blood. I have to take the lowest reading of that extrapolation which was a 165 milligramsto 220 milligrams. There is no definition of “impairment” in the Criminal Code.

It is a factual question that must be decided on the evidence in each case: R. v. Stellato (1993) (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A. offd. (SCC), [1994] 2 S.C.R. 478 andGraat vs. The Queen (1982), (SCC), 2 C.C.C. (3d) 365 (S.C.C.) at pp. 400-401. The critical question, however, iswhether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato,supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell (1991), (PESCAD), 87 Nfld & P.E.I.

R. 269 & 320: It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether hisability to drive is greatly or only slightly impaired. And later at para. 14 our Court said in Stellato:

Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehiclewas impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as toimpairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight togreat, the offence has been made out. [Emphasis added] The core issue is not whether the defendant drank and drove, but whether that drinking impaired his ability to drive.

The legal basis forthis argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392 (Alta C.A.) atparas. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C. 115, 106 C.C.C. (3d) vi (S.C.C.) which adopts, explains and applies thereasoning in Stellato: [I]t is so important not to deal with the issue of impairment separate from impairment of one’s ability to drive. Stellato must not beunderstood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now253(1)(a)].

Nor does it mean any lack of sobriety is sufficient… The ratio of judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused’sability to drive; rather, any degree of impairment of that ability if proved beyond a reasonable doubt, will sustain a conviction. …[Stellato] speaks to degree of proof.

In other words, as framed in Stellato the conduct must be of such a nature that an impairment ofthe ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt. …It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive.

Wherecircumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidenceindicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment ofthe ability to drive, slight or otherwise. In R. v.

Bush, supra at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held “Slight impairment todrive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field ofvision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.” In my view the Crown has proven the charge of impaired driving beyond a reasonable doubt. In this case the evidence of Dr. Desrosiersproved beyond a reasonable doubt that Mr. Tyson’s ability to operate a motor vehicle was impaired by alcohol.

She testified any personwith a blood alcohol concentration of 50 milligrams would be impaired in their ability to operate a motor vehicle. She was not cross-examined on this evidence. She further testified as the blood alcohol concentration increases so does the level of impairment. Mr.Tyson’s blood alcohol concentration according to Dr. Desrosiers projecting his breath sample readings from 9:46 and 10:09 to a timebetween 7:00 and 7:22 p.m. would be 165 to 220 milligrams of alcohol to 100 millilitres of blood. The lower blood alcohol concentrationis more than three times the 50 milligrams Dr.

Desrosiers referred to. I have no doubt Mr. Tyson’s ability to operate a motor vehicle wasimpaired by his consumption of alcohol. The totality of the evidence before me, the witnesses to the collision and the evidence of the collision itself, together with Dr. Desrosiersevidence proves beyond a reasonable doubt Mr. Tyson’s guilt. There will be a conviction on that charge. MR. MORGAN: Thank you sir. THE COURT: The finding of guilt will remain on the over 80, but it will be stayed pursuant to R. v. Kienapple in the Supreme Court ofCanada.

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