R. v. Robertson, 2017 ONCJ 555

ONTARIO COURT OF JUSTICE CITATION: R. v. Robertson , 2017 ONCJ 555 DATE: 2017·08·10 COURT FILE No.: Oshawa 1625001 BETWEEN: HER MAJESTY THE QUEEN — AND — SCOTT ROBERTSON Before Justice S. W. Konyer Heard on April 5, 12, 13, and May 16, 2017 Reasons for Judgment released on August 10, 2017 Mr. M. Ventola ......................................................................................... counsel for the Crown Mr. B.

Scott .......................................................... counsel for the defendant Scott Robertson KONYER J.: INTRODUCTION [ 1 ] Scott Robertson was tried before me on two offences: that he had the care or control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol, and that he had the care or control of a motor vehicle while his blood alcohol concentration exceeded the legal limit, contrary to sections 253(1) (

a) and (

b) of the Criminal Code . These offences are alleged to have occurred on November 21, 2015 in the municipality of Clarington. [ 2 ] The facts of this case are generally not in dispute. Mr. Robertson is a police officer with the Durham Regional Police Service (D.R.P.S.). On the evening of November 20, 2015, while off duty, he attended a party with co-workers at a pub in Bowmanville. He consumed several drinks over the course of the evening, although he appeared physically fine when he left the pub at around 2:00 a.m. on November 21. He was seen getting into the driver’s seat of his pickup. Mr.

Robertson lived in Port Perry, roughly a half hour drive north of Bowmanville. Shortly after he left the pub, a resident on a rural road just north of Bowmanville heard a loud crash, went outside to investigate and discovered a heavily damaged pickup truck abandoned in the middle of the road. He called 911 to report the accident. [ 3 ] Police attended and quickly determined that the truck belonged to Mr. Robertson and that it appeared to have left the road while travelling northbound, striking a tree. An extensive search was undertaken to locate the occupant(

s) of the vehicle, including on-duty officers, members of the canine unit and air support. Sgt. Brian Glionna was sent to Mr. Robertson’s home in Port Perry to see if he turned up there. [ 4 ] In the meantime, Mr. Robertson had left the scene, called friends and obtained a ride to Port Perry. He made statements to his friends that he had fallen asleep at the wheel, and asked to be driven to Port Perry but not directly to his residence. He was dropped off in the neighbourhood nearby. He was then contacted by Phil Edgar, another friend and police officer, who had just come off shift. Cst. Edgar picked up Mr.

Robertson, took him to the Port Perry Hospital to have an injured wrist examined, and notified the officers involved in the search of Mr. Robertson’s whereabouts. Sgt. Glionna was then sent to the hospital to continue the investigation. [ 5 ] Once at the hospital, Sgt. Glionna interviewed Mr. Robertson, formed grounds to believe he had committed the offence of

impaired driving, and arrested him. A qualified technician was sent to the hospital with a mobile instrument to seize and analyzesamples of Mr. Robertson’s breath. Due to the timing of the tests, an expert report was filed to offer the opinion that Mr.

Robertson’sblood alcohol concentration would have exceeded the legal limit at the time he had care or control of his vehicle, and the opinion that hisability to operate the vehicle would have been impaired by alcohol. [6] At trial, I heard testimony from officers who responded to the scene of the accident and were involved in canine tracking of ascent leading from the accident scene to the approximate location where Mr. Robertson was picked up by friends. I heard testimonyfrom two friends of Mr. Robertson who were inside the vehicle that picked him up and drove him to Port Perry. I heard testimony fromSgt.

Glionna and the qualified technician who conducted the analysis of Mr. Robertson’s breath samples. I heard testimony from an on-duty officer who encountered Mr. Robertson outside the pub around midnight and made observations of him. I viewed videosurveillance footage from the pub where the party took place. Finally, I heard testimony from Cst. Edgar, who was called as a defencewitness. [7] There was no issue taken with the manner in which the approved instrument was operated, or the qualifications of thetechnician. No challenge was taken to the instrument’s reliability.

The only issues raised at trial were Charter-based: specifically,whether Sgt. Glionna had reasonable grounds to make a breath demand, and whether Mr. Robertson’s right to consult with counsel inprivate was infringed because he was not afforded privacy for that call. In order to resolve the issues relating to Sgt. Glionna’s grounds,it will be necessary to determine the admissibility of statements made by Mr. Robertson to Sgt. Glionna during the course of hisinterview at the hospital prior to his arrest.

If I find that there were Charter infringements, I will then need to determine whether theresults of the analysis of Mr. Robertson’s breath should be excluded. If the results are excluded, it is agreed that there would be noevidence on the s.253(1)(

b) charge, but I would need to consider whether the Crown has proven impairment beyond a reasonable doubton the remaining evidence. If the results are not excluded, it is agreed that Mr. Robertson must be convicted on both counts, subject tothe rule precluding multiple convictions. [8] I will first summarize the issues raised at trial that I need to decide in this case. I will then review the evidence that is relevant tothese issues. Next, I will analyze each issue according to the arguments raised and apply the law to the facts as I have found them inorder to resolve each issue.

THE ISSUES RAISED AT TRIAL [9] The defence claimed that Sgt. Glionna lacked reasonable grounds to make the breath demand, and that the seizure and analysisof Mr. Robertson’s breath constituted an unreasonable search and seizure contrary to s.8 of the Charter. Since this was a warrantlesssearch and seizure, the onus is on the Crown to prove, on a balance of probabilities, that Sgt. Glionna had reasonable grounds for thebreath demand.

If I find a s.8 breach, the defence argues that the results of the analysis of his breath samples should be excluded fromevidence pursuant to s.24(2) of the Charter. [10] In response to the s.8 application, the Crown tendered the statements made by Mr. Robertson to Sgt. Glionna at the hospital priorto his arrest[1]. The defence argued that the statements ought to be excluded because Mr. Robertson was detained at the time he madethe statements, his detention was arbitrary, and he was not informed of his right to counsel prior to being questioned. Accordingly, thedefence claimed that Mr. Robertson’s s.9 and 10(

b) Charter rights were infringed, and that the statements made to Sgt. Glionna shouldbe excluded from evidence as a result. The onus on these Charter applications is on the defence to prove a breach on a balance ofprobabilities. The Crown argued that Mr. Robertson was not detained within the meaning of s.9 and 10(

b) at the time that he wasquestioned by Sgt. Glionna. [11] The defence also claimed that the statements made by Mr. Robertson to Sgt. Glionna prior to his arrest were inadmissiblebecause they were compelled by statute, specifically s.199 of the Highway Traffic Act. Therefore, the taking of these statementsinfringed Mr. Robertson’s right to silence and right against self-incrimination, both of which are enshrined in s.7 of the Charter. Thedefence relied on the decision of the Ontario Court of Appeal in R. v.

Soules, 2011 ONCA 429 in support of its argument that Mr.Robertson’s statutorily compelled statements are inadmissible for any purpose, including grounds on the s.8 application. The onus is onthe defence to prove the claimed s.7 Charter breaches on a balance of probabilities. The Crown says that Mr. Robertson’s statementswere not statutorily compelled on the facts of this case. In the alternative, the Crown argues that the decision in Soules has beenoverruled by the recent Supreme Court of Canada decision in R. v. Paterson, 2017 SCC 15 , [2017] S.C.J.

No. 15, to the extentthat statutorily compelled statements ruled inadmissible at trial are still admissible on a Charter voir dire. [12] From the foregoing, it is clear that I must decide the admissibility of Mr. Robertson’s statements to Sgt. Glionna in order toresolve the s.8 Charter claim. In the impugned statements, Mr. Robertson admitted to operating his truck at the time of the accident, andadmitted to consuming several beers before driving. If the statements are inadmissible, then the Crown concedes that it cannot provethat Sgt.

Glionna had reasonable grounds for making the demand. [13] Even if these statements are admitted, then the defence claimed that Sgt. Glionna had no information about the timing of theaccident so that he had no grounds for believing that Mr. Robertson had committed an offence within the preceding three hours, aprerequisite for a lawful demand. The Crown argued that Sgt. Glionna had information about the timing of the accident from othersources arising out of the police investigation, and that he was entitled to rely on this information in forming his grounds. Again, theonus is on the Crown to prove that Sgt.

Glionna had reasonable grounds for the breath demand. [14] When the qualified technician arrived at the hospital, Sgt. Glionna did not inform the technician of his grounds for the breathdemand. The defence claimed that the failure to do so constituted a distinct s.8 Charter breach as the technician could not have hadreasonable grounds to believe that Mr. Robertson had committed an offence. The Crown argued that only Sgt.

Glionna, as the officerwho made the demand, was required to form the requisite belief, and that his failure to relay his grounds for this belief to the technicianis irrelevant. [15] As a remedy for the alleged s.8 breaches, the defence sought an order excluding the results of the analysis of Mr. Robertson’sbreath samples pursuant to s.24(2) of the Charter. The Crown argued that if I found any breaches the breath readings should

nevertheless be admitted. [ 16 ] The defence also claimed that Mr. Robertson’s 10(

b) rights were infringed. After being arrested, Mr. Robertson was cautioned, informed of his right silence and his right to counsel. He requested to speak to a lawyer, and efforts were made to reach his counsel of choice. Mr. Robertson ultimately spoke to his both duty counsel and his counsel of choice in the hospital examination room. The defence claimed that his right to counsel was infringed because he was not afforded privacy for this call. The onus is on the defence to prove this alleged breach, and the Crown argued that the defence had failed to discharge its onus. If I find a s.10(

b) breach due to lack of privacy for Mr. Robertson’s call to counsel, the defence claimed that the readings out to be excluded from evidence as a result. [ 17 ] The parties agreed that if Mr. Robertson’s breath readings are not excluded, then he must be found guilty of both offences based on the opinion evidence contained in the toxicology report. If the readings are excluded, the Crown argued that he should still be found guilty of impaired care or control on the basis of the remaining evidence.

The defence argued that without the toxicologist opinion on impairment based on the readings that I should have a reasonable doubt that Mr. Robertson’s functional ability to operate a motor vehicle was impaired by alcohol. [ 18 ] Accordingly, I must decide the following issues.

i) First, whether the Crown has proven on a balance of probabilities that Sgt. Glionna had reasonable grounds to make the breath demand. To decide this issue, I must determine whether Mr. Robertson’s pre-arrest statements to Sgt. Glionna are admissible. Specifically, I must decide a. whether Mr. Robertson was detained within the meaning of s.9 and 10(

b) of the Charter ; i. if he was detained, whether his detention was arbitrary; ii. if he was detained, whether the police were required to inform him of his right to counsel prior to questioning; b. whether Mr. Robertson was compelled by statute to speak to Sgt. Glionna, thereby infringing his right to silence and right against self-incrimination as guaranteed by s.7; c. whether Sgt. Glionna had grounds to believe that Mr. Robertson committed an offence within the preceding three hours; d. whether the failure of Sgt.

Glionna to convey his grounds to the qualified technician means that the search and seizure of Mr. Robertson’s breath was done without reasonable grounds; ii) Second, whether Mr. Robertson has proven on a balance of probabilities that his right to counsel was infringed due to a failure by the police to permit him to consult with counsel in private; iii) Third, if I find a s.8 and/or s.10(

b) breach, whether the results of the analysis of Mr. Robertson’s breath samples ought to be excluded from evidence as a remedy for the breach(es); iv) Fourth, if the breath readings are excluded, whether the Crown has proven beyond reasonable doubt that Mr. Robertson’s ability to operate a motor vehicle was impaired by alcohol. [ 19 ] I will now summarize the facts that are necessary in order to resolve these issues.

SUMMARY OF THE FACTS [ 20 ] The police began investigating the single motor vehicle collision involving Mr. Robertson’s truck immediately after it was discovered. Once the identity of the truck’s owner was learned, this information was broadcast and attracted a good deal of attention from fellow officers who knew Mr. Robertson. This, of course, is entirely unsurprising given the fact that his vehicle had been involved in a serious collision and his whereabouts were unknown. [ 21 ] Detective Constable Mark Hindmarch was working a night shift on November 20-21, 2015.

At about 2:45 a.m., he heard about the investigation into the accident involving Mr. Robertson’s truck. At 3:02 a.m., he called the patrol Sergeant on duty to inform him of an encounter that he had had with Mr. Robertson earlier in his shift. D.C. Hindmarch testified that he had seen and spoken to Mr. Robertson shortly before midnight while he was parked in his cruiser outside Frosty John’s Pub in Bowmanville. He knew Mr. Robertson as a fellow officer, and they had a brief conversation lasting about 30 seconds. When they spoke, D.C. Hindmarch was seated behind the steering wheel of his cruiser, while Mr.

Robertson stood at his passenger side window. He said that although he did not detect an odour of alcohol, it was obvious to him that Mr. Robertson had been drinking from his flushed face and boisterous demeanour. He said that he would have been concerned and investigated further had he seen Mr. Robertson get in a vehicle. He said that he saw Mr. Robertson walk from the area of the bar, that Mr. Robertson told him he was there attending a birthday party, and that after their brief conversation Mr. Robertson walked back to the area of the bar.

He thought nothing further of their encounter until hearing radio communications about the accident involving Mr. Robertson’s truck. [ 22 ] D.C. Hindmarch typed up a report about this incident on November 21 at 5:15 a.m. In this report, he wrote that he could tell Mr. Robertson had consumed alcohol, but that he was not intoxicated. He was then off duty for the next four days, returning to work on November 26. At that time, he was told by another Sergeant that “there was a problem with his report” and said he was asked to clarify what he meant about Mr. Robertson’s level of intoxication.

He amended his report to state that although he did not believe Mr. Robertson was committing the offence of public intoxication within the meaning of the Liquor Licence Act , that he did believe Mr. Robertson’s ability to drive was impaired by alcohol. He denied any suggestion that he was pressured to alter his report to incriminate Mr. Robertson, although he acknowledged that his second report contained the first mention of any slurring in Mr. Robertson’s speech.

[ 23 ] Cst. Angelee Milton was dispatched at 2:09 a.m. to attend the scene of a motor vehicle collision in the area of 5805 Liberty St. North in Bowmanville based on information received from the resident at that address, Vern Cook. Mr. Cook was deceased by the time of Mr. Robertson’s trial, but an audio recording of an interview he gave to police the day after the collision was admitted on consent. Mr. Cook said that he heard a loud crash around 2:00 a.m. on the roadway as he was going to bed, that he went outside to investigate and discovered a damaged and unoccupied pickup truck in the roadway.

Another motorist stopped and they did a quick search in the immediate area for the driver. After finding no one, he called 911. He estimated that he placed the call about 5 to 10 minutes after first hearing the crash. [ 24 ] Cst. Milton arrived at the accident scene at 2:23 a.m. She described the scene of the accident as a rural area north of the town of Bowmanville. On arrival, she discovered a heavily damaged pickup truck facing westbound across both lanes of traffic. Liberty Street runs north and south, and the truck was stopped facing west.

One of the front wheels had broken off the truck in the collision, and it appeared as though the truck had struck a tree on the west side of the road before coming to rest. Tire marks on the road and ditch and damage to the south side of the tree led her to conclude that the vehicle had been traveling northbound, had crossed the southbound lanes into the ditch on the west side of Liberty Street before striking the tree and bouncing back onto the road. [ 25 ] Cst. Milton said that the airbags in the pickup truck had been deployed, and that she saw blood on the exterior of the passenger side of the truck.

No occupants of the vehicle were found, and she believed that the driver was likely injured. She said that numerous other police personnel were called in to locate the driver and any other occupants, including tactical officers, canine officers, and an air support unit. [ 26 ] At 2:25 a.m., Sgt. Glionna was notified by the acting Duty Inspector that an accident involving the personal truck of a fellow officer was being investigated. Sgt. Glionna, who knows both Mr. Robertson and his spouse (also a police officer), was sent to their residence in Port Perry to check on Mr. Robertson’s whereabouts.

He arrived at 2:35 a.m., and parked a discreet distance away in order to observe the house and see whether Mr. Robertson returned. While he waited, he was able to monitor the ongoing investigation by reading updates on the call card in his cruiser. He learned that Mr. Robertson’s badly damaged truck had been found abandoned in the middle of the road, and that canine and air support units were being called in to assist in the search for him. At 2:50 a.m. he was asked to approach Mr. Robertson’s home and knock on the door, which he did, getting no response. [ 27 ] Cst. Jason Dickson is a canine officer.

He was dispatched to the scene along with his dog at 2:12 a.m. and arrived at 2:28 a.m. He noted that the passenger window on the vehicle was open, and suspected that the occupant(

s) had left through this window. Since the passenger side was facing north, he used his dog to track for a scent to the north of the vehicle. His dog appeared to pick up a scent in the east ditch of Liberty Street heading north from the accident site. His dog tracked the scent northbound. At one point the dog retrieved a pair of soiled men’s boxers from a field just beyond the ditch. The dog tracked the scent north on Liberty Street to the intersection of Concession Road 6, where the dog followed the track eastbound.

After about 2 kilometers, the dog appeared to lose the scent it was following. [ 28 ] Pamela Leather is a civilian member of the Durham Regional Police Service. She attended a birthday party for a co-worker, Amanda Hoover, at Frosty John’s Pub in Bowmanville on the evening of November 20. She testified that she knew Mr. Robertson from work, and recalled seeing him at the party. She remembered that he was drinking beer at the party, but had no idea how much because people were constantly circulating and she was there with her own group of friends. She left the bar with friends at around 2:00 a.m.

She estimated that she had consumed about 5 drinks, and said that Wayne Hoover, Amanda’s husband, was the designated driver for their group. She said that Mr. Robertson left the bar at about the same time as her group, that she had no concerns for his level of sobriety, and that she saw him get in the driver’s seat of his pickup and put on his seat belt before her group left the parking lot. [ 29 ] After dropping off the first member of their group, Ms. Leather said that Wayne Hoover received a call on his cell phone.

He then announced that they had to go “pick up Scott” and handed his phone to Marianne Hartlieb, another passenger. The Hoover vehicle left Bowmanville and began searching for Mr. Robertson on back roads. She said they picked him up on Concession Road 6. Immediately before picking up Mr. Robertson, she noticed a police roadblock with flashing emergency lights. Once they picked up Mr. Robertson, they began driving north towards the town of Port Perry. At one point she recalled Mr. Robertson telling Mr. Hoover “please just take me home” and at another point he said “I fell asleep”. For most of the ride, Mr.

Robertson was talking to an unknown person in hushed tones on his cell phone. There were three rows of seats in the Hoover vehicle, and Mr. Robertson sat in the middle row with Ms. Hartlieb, while Ms. Leather sat in the back row. [ 30 ] When they got to Port Perry, she said that Mr. Robertson told Mr. Hoover that he did not want to be dropped off at home, but somewhere nearby. Mr. Robertson continued talking to someone on his phone as they drove around until a spot was found to drop him off. [ 31 ] Marianne Hartleib is also a civilian member of the Durham Regional Police Service.

She said that she arrived at the birthday party at Frosty John’s at around 9:00 p.m., and that she saw Mr. Robertson within about 20 minutes of her arrival. There were many people in the pub, and she saw Mr. Robertson in passing throughout the night. She remembered seeing him drinking beer. She left with Ms. Leather and the Hoovers, and said that she was very intoxicated by the time they left the bar. She remembers that Mr. Robertson left at the same time as their group, and said that he seemed fine. [ 32 ] She confirmed that Mr. Hoover received a phone call from Mr.

Robertson on their drive home, and that they drove north out of Bowmanville to find him. Mr. Hoover passed the phone to her so that she could gather information from Mr. Robertson about his whereabouts. At one point he told her “I can’t believe it I fell asleep”. When he got in the Hoover vehicle he said “I can’t believe it, I fell asleep, I crashed my truck.” He sat next to Ms. Hartleib in the middle row of seats. He asked to be driven to Port Perry, where Ms. Hartlieb knew him to live. On the way he was talking to an unknown person on the phone.

When they arrived in Port Perry, he asked to be dropped off some distance from his home. [ 33 ] Sgt. Glionna, who had been waiting outside Mr. Robertson’s residence in Port Perry, was notified at approximately 4:17 a.m. that another off-duty Durham officer, Cst. Phil Edgar, had called from the Port Perry Hospital, where he had apparently just arrived with Mr. Robertson. Sgt. Glionna was dispatched to the hospital and arrived at 4:23 a.m. He went to the treatment room where Mr. Robertson

was waiting for medical attention, and questioned him about the circumstances surrounding the accident. He agreed that at this point he knew that there were suspicious circumstances surrounding the accident – it was unexplained, occurred late at night, and the driver had apparently fled. He agreed that he would have been looking for signs of alcohol consumption. He also agreed that his belief was the driver had an obligation to answer his questions by virtue of the H.T.A . reporting requirements, and that he would not have let Mr. Robertson leave until he answered his questions. However, he never told Mr.

Robertson that he was being detained or that he was legally obliged to answer questions. He simply asked questions about the accident, and said that Mr. Robertson answered. [ 34 ] In response to his questions, Mr. Robertson told him that he had been driving home and had fallen asleep at the wheel. He said that he crashed his truck, that his airbags went off, that his truck was disabled, and that his cell phone was dead. He said he panicked and began walking when he was picked up on the roadway. When asked, he said that he had been coming from Frosty John’s Pub where he had consumed 4 or 5 beers. As Mr.

Robertson spoke, Sgt. Glionna began to detect an odour of an alcoholic beverage emanating from his breath. [ 35 ] In the middle of this conversation, Sgt. Glionna received a call from the duty inspector, who conveyed the information received from D.C. Hindmarch described above. Returning to his conversation with Mr. Robertson, Sgt. Glionna testified that he then noticed that his eyes were glossy with dilated pupils. At this point, Sgt. Glionna formed a belief that Mr. Robertson had committed the offence of impaired driving. He arrested Mr.

Robertson at 4:32 a.m., cautioned him and informed him of his right to counsel. Mr. Robertson understood his rights and initially asked to speak with duty counsel, then later asked to speak to private counsel. Sgt. Glionna facilitated these requests, and Mr. Robertson spoke to both duty counsel and his chosen private counsel using Sgt. Glionna’s phone in the treatment room. Sgt. Glionna said he left the room, and moved far enough away that he could not overhear the conversations while still being in a position to observe Mr. Robertson through the glass door of the treatment room.

He could not recall if the door to the treatment room was completely closed when Mr. Robertson spoke to either lawyer. [ 36 ] Cst. Jonathan Stinson is a qualified technician. He was dispatched to the Port Perry Hospital with a mobile Intoxilyzer 8000C and arrived at 5:23 a.m. He set up the approved instrument, conducted the usual diagnostic and calibration tests, and formed the opinion that the instrument was in proper working order. He received custody of Mr. Robertson and analyzed two breath samples that were provided directly into the Intoxilyzer.

The first sample was received at 6:43 a.m. and the result of the analysis of this sample was 89 milligrams of alcohol per 100 millilitres of blood. He received a second sample at 7:05 a.m. and the result of the analysis of this sample was 88 milligrams of alcohol per 100 millilitres of blood. [ 37 ] On consent, the Crown filed a toxicology report from Inger Bugyra of the Centre of Forensic Sciences. This report offered the opinion that based on the results obtained by Cst. Stinson, Mr.

Robertson’s blood alcohol concentration (BAC) at 2:05 a.m. would have been between 105 and 170 milligrams of alcohol per 100 millilitres of blood. This opinion is based on four assumptions. First, that Mr. Robertson does not eliminate alcohol from his body at a rate of less than 10 milligrams of alcohol per 100 millitres of blood per hour, which is rare. Second, that allowance was made for a plateau of up to two hours. A plateau is the period of time where there is no significant change in the BAC due to the rate of absorption of alcohol being roughly equal to the rate of elimination from the body.

A plateau of greater than two hours is rare, while a plateau of less than two hours would result in an increased BAC. Third, that there was no “bolus drinking” or the consumption of a large quantity of alcohol in the 15 minutes prior to driving. Fourth, that there had been no consumption of alcohol after the accident. [ 38 ] The report also offered the opinion that Mr. Robertson’s ability to operate a motor vehicle at the projected BAC would have been impaired by the consumption of alcohol. [ 39 ] As part of the investigation into the collision involving Mr.

Robertson’s vehicle, police obtained copies of video surveillance footage from Frosty John’s Pub in Bowmanville from 9:30 p.m. on November 20 to 2:00 a.m. on November 21. There are several camera angles from both inside and outside of the bar. Mr. Robertson can be seen moving about the pub, circulating amongst various groups of people at the party. He can be seen consuming eight large glasses of what appears to be draft beer throughout the night. He did not display any significant difficulties with his walking, balance or gait at any time, although he can be seen yawning several times. [ 40 ] Cst.

Phil Edgar was called as a defence witness. He is also a member of the D.R.P.S. and is a personal friend of Mr. Robertson. He was on duty the night of November 20 and early morning hours of November 21. Prior to finishing his shift, he heard police radio communications about the discovery of Mr. Robertson’s damaged vehicle, and was aware of efforts that were being made to locate Mr. Robertson himself. When he finished his shift at 3:30 a.m. on November 21, he kept his police radio in contravention of department policy in order to be able to monitor the investigation involving Mr. Robertson.

Once he was off duty, he used his personal cell phone to send a text message to Mr. Robertson. He promptly received a call back from Mr. Robertson, and made arrangements to meet him outside the curling club in Port Perry. Cst. Edgar picked him up at that location and drove him to the hospital because Mr. Robertson was complaining of an injury to his wrist. It was only after arriving at the hospital that Cst. Edgar notified other officers that he had located Mr. Robertson, which prompted Sgt. Glionna to attend the hospital as previously described. [ 41 ] Cst.

Edgar testified that he did not note any odour of an alcoholic beverage emanating from Mr. Robertson, and that he did not display any signs of impairment. He insisted that he never asked Mr. Robertson what had happened because he did not want to become involved in the investigation. He was present when Sgt. Glionna questioned Mr. Robertson about the accident. He heard Sgt. Glionna ask Mr. Robertson if he was driving and what had happened. He heard Mr. Robertson reply that he had fallen asleep. Mr. Robertson had not been cautioned or informed of his right to counsel prior to these questions being asked.

ANALYSIS [ 42 ] Next I will need to analyze the evidence and apply the law as the facts as I find them to be. Issue 1: The admissibility of Mr. Robertson’s statements on the s.8 Charter application

[43] The analysis of Mr. Robertson’s breath constituted a warrantless search and seizure, which is presumptively unreasonable. Theonus is therefore on the Crown to rebut the presumption by establishing that Sgt. Glionna had reasonable grounds to make the demandthat Mr. Robertson provide samples of his breath for analysis. It is common ground that Sgt. Glionna derived his grounds in part fromresponses to questions he asked of Mr. Robertson at the hospital. [44] However, Mr. Robertson claims that he was detained when questioned, and further, that his detention was arbitrary.

It iscommon ground that he was not informed of his right to counsel prior to being questioned. Mr. Robertson therefore claims that anystatements he made were obtained in a manner which infringed his s.9 and 10(

b) rights. Further, Mr. Robertson claims that he wascompelled by statute to answer Sgt. Glionna’s questions, such that his right to silence and right against self-incrimination as guaranteedby s.7 were infringed. As a result, he argues that his statements ought to be excluded from evidence on the s.8 voir dire. [45] Without the statements, the Crown concedes that it cannot rebut the presumption of unreasonableness. The Crown argues,however, that Mr. Robertson was not detained within the meaning of s.9 or 10 of the Charter, and that he was not compelled by statute toreport the accident in the circumstances of this case. I will deal with each issue in turn.

i) Was Mr. Robertson detained when questioned at the hospital? [46] Although he was not under arrest or physically restrained when questioned, the defence claims that Mr. Robertson was at leastpsychologically detained. Psychological detention can arise in two circumstances: where the person is under a legal obligation to complywith the investigation, and “where a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply”: R. v. MacMillan, 2013 ONCA 109 , [2013] O.J. No. 727 (C.A.), para. 36; R. v. Wong, 2015 ONCA 657 ,[2015] O.J. No. 5049 (C.A.), para. 41; R. v.

Grant, 2009 SCC 32 , [2009] S.C.J. 32, para. 30. [47] In this case, Sgt. Glionna agreed that he would not have let Mr. Robertson leave until he answered questions relating to theaccident. He believed that Mr. Robertson was required to answer questions about the accident by virtue of s.199 of the Highway TrafficAct. Whether Sgt. Glionna’s belief was legally correct or not, it is a belief he genuinely held as an experienced police officer. It wouldhave been reasonable for Mr.

Robertson to reach the same conclusion, that he had no choice but to comply in answering questions aboutthe accident, which is precisely what he did. In the circumstances, I find that Mr. Robertson was psychologically detained. ii) Was the detention arbitrary? [48] A detention will be arbitrary and will infringe s.9 of the Charter where the detention is not authorized by law: Grant, supra, atpara. 54. A brief investigative detention based on reasonable suspicion is authorized by law, specifically the common law police powerof investigative detention. In my view, Mr.

Robertson was detained briefly for a lawful investigative purpose based on reasonablesuspicion. [49] The facts known to Sgt. Glionna were that Mr. Robertson’s vehicle had been involved in a serious and unexplained motor vehiclecollision late at night. The vehicle had been abandoned and no one connected to the vehicle could be found despite a massive policemanhunt. Mr. Robertson was discovered at a nearby hospital within hours of the accident. Sgt. Glionna detained Mr. Robertson brieflyin order to investigate the accident. [50] I find that Mr.

Robertson’s detention was connected to a legitimate Highway Traffic Act investigation into the unexplainedaccident involving Mr. Robertson’s vehicle. Such a detention is not arbitrary within the meaning of s.9 in the sense that it was random orwithout individualized cause: see R. v. Harris, 2007 ONCA 574 , [2007] O.J. No. 3185 (C.A.), at para. 27. Sgt. Glionna had areasonable suspicion that Mr. Robertson was involved in the accident, and he was lawfully entitled to briefly detain Mr. Robertson infurtherance of the ongoing investigation into the cause of the accident. [51] Mr.

Robertson has accordingly failed to prove a breach of his right not to be arbitrarily detained. iii) Did the detention prior to arrest trigger s.10(b)? [52] I agree with the Crown that Mr. Robertson’s brief, lawful detention in relation to a Highway Traffic Act investigation does nottrigger the right to counsel within the meaning of s.10(b). This finding flows from a consideration of the decision of the Ontario Court ofAppeal in Harris, supra, a case cited to me by the defence. [53] In Harris, the accused was a passenger in a vehicle that was stopped for a lawful H.T.A. investigation.

During the course of thatlawful detention, the accused was asked for identification, which led to a discovery that he was in breach of bail conditions andultimately a search that uncovered drugs. Mr. Harris argued that the police were required to inform him of his s.10(

b) rights beforeasking for his identification. The Court of Appeal held that “the exercise of the rights guaranteed by s.10(

b) is incompatible with thebrief roadside detention contemplated by a stop made for road safety purposes” [para. 47]. From this, it follows that a brief investigativedetention pursuant to a Highway Traffic Act investigation does not require an immediate implementation of the detainee’s 10(

b) rights. [54] The Supreme Court of Canada has also held that police are authorized under both the general traffic stop powers under provincialhighway traffic statutes (ie, s.216(1) of the Ontario H.T.A.) and at common law to briefly detain motorists in order to conduct sobrietychecks including questioning about alcohol consumption without triggering the motorist’s 10(

b) rights: R. v. Orbanski, 2005 SCC 37, atpara. 40, 41 and 60. To be clear, the court held that this type of investigative detention infringed s.10(b), but that the infringement wassaved under s.1 of the Charter because it was prescribed by law and was found to be reasonable and justifiable in a free and democraticsociety. [55] The Supreme Court also noted in Orbanski that “[s]creening measures such as questioning drivers about prior alcoholconsumption and requesting them to perform sobriety tests were found to be authorized under s.48(1) of the Ontario Highway Traffic

Act: R. v. Saunders (1988), (ON CA), 41 C.C.C. (3d) 532 (Ont.C.A.), and R. v. Smith (1996), (ONCA), 105 C.C.C. (3d) 58 (Ont.C.A.)”. A driver includes a person who has the care or control of a motor vehicle: s. 48(18). Sections254(2) and (3) of the Criminal Code authorize police officers to demand breath samples where they have a sufficient basis to believe thata person has committed a drinking and driving offence within the preceding three hours.

In my view, a necessary implication of thesecombined powers is that the police are authorized by law to investigate persons suspected of committing drinking and driving offenceswithin the preceding three hours. [56] Therefore, had Mr. Robertson remained at the scene of the accident until police arrived, in my view the police would have beenjustified in detaining him briefly for investigative purposes under the Highway Traffic Act without informing him of his right to counsel.

Any incriminating information obtained from him relating to alcohol consumption in that scenario would be admissible to establishgrounds for further investigative steps. I can see no principled basis for reaching a different conclusion in the case before me simplybecause Mr. Robertson chose to leave the scene of the accident before police arrived. [57] I find that Sgt. Glionna was authorized at common law to briefly detain Mr. Robertson for investigative purposes related to theserious and unexplained accident then under investigation without immediately informing him of his right to counsel.

Accordingly,although Mr. Robertson was detained, there was no breach of his s.10(

b) rights. iv) Was Mr. Robertson’s right to silence infringed because he was compelled bystatute to answer Sgt.

Glionna’s questions? [58] Section 199(1) of the Ontario Highway Traffic Act provides that “[e]very person in charge of a motor vehicle or street car who isdirectly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparentlyexceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with theinformation required concerning the accident as may be required by the officer under subsection (3).” It is undisputed that the accidentinvolving Mr.

Robertson’s vehicle resulted in both personal injuries to him and damage in an amount sufficient to trigger the reportingobligation. Subsection (3) requires the person making the report to provide particulars about the accident. [59] In R. v. Soules, 2011 ONCA 429 , [2011] O.J. No. 2500 (C.A.), the Court of Appeal considered the relationship betweens.199(1) of the H.T.A. and the right to silence or right against self-incrimination as encompassed by s.7 of the Charter. In Soules, theaccused was involved in a multi-vehicle collision. A police officer attended the scene and questioned each driver.

Based onobservations made, the officer formed a reasonable suspicion that Mr. Soules had alcohol in his body, and made a screening devicedemand. At trial, the judge accepted Mr. Soules’ testimony that he remained at the scene and answered the officer’s questions “becausehe understood that he was required by law to do so”: Soules, supra, at para. 9. [60] The Court of Appeal held that the accident reporting requirements found in s.199 of the H.T.A. “eradicated” the right of amotorist involved in an accident to choose whether or not to speak to the police: see para. 42.

As a result, the court held that “[t]hestatutorily compelled admission [….] is not admissible for the purpose of establishing grounds for making either the ASD or breathdemand”: Soules, supra, at para. 43. The defence argues that the same reasoning applies with equal force to the statements made in thecase before me by Mr. Robertson to Sgt. Glionna, and that Mr. Robertson’s statements are therefore not admissible for any purpose,including establishing grounds. [61] The Crown argues that s.199(1) of the H.T.A. has no application in Mr.

Robertson’s case because he did not report his accidentforthwith, nor did he report it to the nearest police officer. The Crown points out that Mr. Robertson had an operable cell phone on hisperson, which he used to call for a ride to effectively flee the accident scene. He used the same phone to make other calls during thecourse of the drive from Bowmanville to Port Perry, and to respond to the text message he received from Cst. Edgar. In thosecircumstances, the Crown argues, it cannot be said that he was reporting the accident “forthwith” when he responded to questions fromSgt. Glionna. Further, Mr.

Robertson left the scene of the accident when police vehicles with emergency lights activated could be seenresponding to the scene, and drove to a town about half an hour away. Sgt. Glionna, in those circumstances, was certainly not the“nearest police officer” according to the Crown. [62] I do not accept the Crown’s argument. The Supreme Court of Canada made it clear in R. v. White (SCC),[1999] 2 S.C.R. 417, the case which Soules, supra, followed, that it is the reasonableness of the claimant’s belief, not the legalcorrectness of that belief, which is determinative: see para. 78. It would not matter if Mr.

Robertson was not actually required by law toprovide Sgt. Glionna with information about the accident because he was not the closest officer and the report was not made forthwith,so long as Mr. Robertson held an honest and reasonable belief that he was required by law to answer questions. In those circumstances,his statements would be compelled by statute even if he was technically incorrect about whether the statute actually applied. [63] What Mr. Robertson’s

section 7 claim does require, however, is some evidence that he was acting under an honestly held beliefthat he was required to answer Sgt. Glionna’s questions. As the Supreme Court said in White, supra, “[t]he accused who raises a Charterchallenge to the admissibility of evidence bears the onus of establishing an infringement of his or her Charter rights.

Thus, where anaccused seeks to argue that the admission of a statement into evidence will violate the principle against self-incrimination under s.7because he or she was compelled to make the statement by terms of a provincial statute, it is the accused who must establish on thebalance of probabilities that the statement was compelled”: para. 81. [64] I agree with Green J., who held in R. v. Pita, [2013] O.J.

No. 5974, that “[i]n most circumstances … satisfaction of the legalburden effectively requires a defendant to take the stand, testify to his or her belief as to the legal obligation that compelled their self-incriminatory “report” to the police, and have the honesty and reasonableness of their belief tested by the Crown through cross-examination”: para. 52. Mr. Robertson did not testify on the s.7 application, and I have no way of knowing why he chose to answer Sgt.Glionna’s questions about the accident.

I do know that he gave similar answers about the cause of the accident to the occupants of thevehicle that picked him up near the scene of the accident. It may be that Mr. Robertson made statements to Sgt. Glionna because hehonestly felt that he was legally required to do so. Or it may be that he made the statements he did out of a sense of civic duty, moralresponsibility, or regret. In the absence of evidence on the point, I simply cannot say. It follows that Mr. Robertson has failed to

discharge his onus on the s.7 application. [65] Since I have concluded that Mr. Robertson has not established a breach of his s.7, 9 or 10(

b) rights, it follows that I need notconsider whether his statements should be excluded from evidence pursuant to s.24(2). The statements are admissible for the purpose ofassessing whether Sgt. Glionna had grounds for making a breath demand of Mr. Robertson. Issue 2: Whether Sgt. Glionna had reasonable grounds for making a breath demand [66] The analysis of Mr. Robertson’s breath samples constituted a warrantless search and seizure. Warrantless searches arepresumptively unreasonable. The onus is therefore on the Crown to prove, on a balance of probabilities, that Sgt.

Glionna had reasonablegrounds to make the breath demand. [67] The test for when a police officer may demand a breath sample is set out is s.254(3) of the Criminal Code as follows: Where a peace officer believes on reasonable grounds that a person is committing, or at any time within the preceding three hours hascommitted, as a result of the consumption of alcohol, an offence under s.253 [impaired driving], the peace officer may, by demand madeto that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable such samples of the person’s breath as in the opinion of a qualified technician, … are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood, and toaccompany the peace officer for the purpose of enabling such samples to be taken. [68] Reasonable grounds has both a subjective and an objective component.

The officer must subjectively have an honest belief thatthe suspect has committed the offence, and that belief must be objectively reasonable. The Supreme Court of Canada has said that“determining whether there are reasonable and probable grounds is a fact-based exercise dependent upon the circumstances of the case”:see R. v. Rhyason, 2007 SCC 39 , [2007] S.C.J. no 39, at para. 19. [69] In Mr. Robertson’s case, the defence argues that Sgt. Glionna could not have formed the subjective belief required by s.254(3)since he had no information about the time of the accident.

Without such information, it is argued, he could not possibly form a beliefthat Mr. Robertson committed an offence within the preceding three hours. [70] In support of its position, the defence relies on the decision of the Ontario Court of Appeal in R. v. Pavel, (ONCA), [1989] O.J. No. 2307. In that case, police attended the scene of a motor vehicle accident involving Mr. Pavel’s vehicle at 11:48p.m. The responding officer formed a belief that he had alcohol in his system, and made an approved screening device demand, whichwas complied with and produced a fail reading. Mr.

Pavel was eventually taken to a hospital where a second officer, Cst. Viola, made ademand for blood samples at 2:20 a.m. The Court of Appeal made the following findings based on the trial record: Viola had no contact with the respondent until 2:20 a.m. and there was no evidence that he had information from any source as to thetime at which the respondent was alleged to have committed an offence under s. 253.

Accordingly, there was no proof that, prior tomaking the demand for blood samples, he formed a belief on reasonable and probable grounds that the respondent, at any time within thetwo hours[2] preceding the formation of such belief, had committed an offence under s. 253.

Standing alone, the demand made by Violawould appear to be an invalid demand and the blood samples taken pursuant thereto would seem to constitute an unreasonable seizure.[page 7] [71] The Court went on to conclude that “it is obvious that the demand made in the present case was not a valid one as there was noevidence that Constable Viola had any information as to when the accident occurred and accordingly had no grounds for forming anybelief that it had occurred within the preceding two hours” (emphasis added) [page 8].

I agree with defence counsel that the officermaking the demand must have a subjective belief that the offence was committed in the preceding three hours, and that belief must beobjectively reasonable. In Pavel, the officer had no information about when the accident occurred, and simply made a demand oninstructions from a fellow officer. The situation in Mr. Robertson’s case, however, is markedly different. [72] Here, Sgt. Glionna was notified by the acting duty Inspector at 2:25 a.m. that Mr. Robertson’s damaged vehicle had been located,and that no one was found at the scene. He was sent to Mr.

Robertson’s residence in Port Perry to see if Mr. Robertson returned home. After being notified of the occurrence, Sgt. Glionna was able to monitor the ongoing police investigation through the call card andradio. He learned that Mr. Robertson’s truck had been badly damaged and abandoned in the middle of the road, and that canine and airsupport units had been called in to assist in the search for the driver. When asked about his belief as to when the accident had occurred,he said that he understood from the call card that it had occurred about 10 to 15 minutes prior to him being sent to Mr.

Robertson’sresidence. [73] It is clear that an officer can rely on hearsay information in forming grounds: see R. v. Bush, 2010 ONCA 554 , [2010]O.J. No. 3453 (C.A.), at para. 61. Whether the information ultimately turns out to be accurate is not determinative of whether theofficer’s belief was reasonable: Bush, supra, at para. 66. In this case, the information about timing appears to have been accurate. VernCook, who lived near the scene of the accident, said he heard a crash shortly after 2:00 a.m., went outside to investigate, and called 911after discovering Mr. Robertson’s damaged vehicle.

He estimated that the call was placed about 5 to 10 minutes after he heard the crash,which accords with the information Sgt. Glionna said he received about the timing of the accident. Sgt. Glionna formed his grounds forthe breath demand at 4:32 a.m. I find that he subjectively believed that Mr. Robertson had the care or control of his vehicle within thepreceding three hours, and I find that this belief was objectively reasonable. [74] I also find that Sgt. Glionna had reasonable grounds to believe Mr. Robertson had committed the offence of impaired driving,based on a totality of the circumstances known to him.

He knew that Mr. Robertson’s vehicle had been involved in an unexplainedcollision in the early morning hours, and he knew from his conversation with Mr. Robertson that he had been driving after havingconsumed several alcoholic beverages and that he claimed to have fallen asleep behind the wheel. He also detected an odour of alcohol

emanating from Mr. Robertson’s breath and observed that his eyes were glossy with dilated pupils. [75] The test for whether reasonable grounds existed for a breath demand is not onerous, and in my view this threshold is met basedon the totality of the circumstances. I agree with the following statement of De Filippis J. in R. v. Turner, [2004] O.J. No. 56 (C.J.), atpara. 6: “Judicial scrutiny of reasonable and probable grounds for a breathalyzer demand must recognize the context within which thepolice officer’s obligation operates.

An officer must make a quick but informed decision about whether a driver is impaired. In thiscontext, the grounds for a breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.). In other words, there mustbe enough to justify laying a charge but this does not mean a prima facie case or proof beyond a reasonable doubt.” [76] Here, Sgt. Glionna had a reasonable basis for his belief that the accident had occurred shortly before it was reported to police.

Healso knew that the accident occurred while Mr. Robertson was driving after having consumed several drinks. Consumption of alcoholtogether with an unexplained accident may suffice to generate reasonable grounds: see R. v. Rhyason, supra, at para. 19; R. v. Bush,supra, at para. 64. In Mr. Robertson’s case, the only explanation proffered for the accident was that Mr. Robertson fell asleep behindthe wheel after consuming several alcoholic drinks. In my view, Sgt. Glionna’s belief that Mr. Robertson had committed the offence ofimpaired driving was objectively reasonable and supported by abundant evidence.

Indeed, it is difficult to see what other rationalconclusion the officer could have reached in the circumstances. The Crown has met its onus to establish reasonable grounds for thebreath demand. Issue 3: Whether the failure of Sgt. Glionna to convey his grounds to the qualifiedtechnician rendered the seizure of the breath samples unlawful [77] The defence argued that even if Sgt. Glionna himself had reasonable grounds to make a breath demand, his failure to conveythose grounds to the qualified technician who ultimately took the samples from Mr.

Robertson constitutes a s.8 infringement, since thequalified technician could not himself have had any grounds. [78] This argument has been considered and rejected in a number of previously decided cases – see, for example, R. v. Deschamps,[2000] O.J. No. 3086 (S.C.J.), at para. 6; R. v. McNeill, [2001] O.J. No. 3770 (C.J.), at para. 21; R. v. Chavez, [2001] O.J. No. 3753(C.J.), at para. 3; R. v. Padda, [ 2003] O.J. No. 5502 (C.J.) at para. 17; R. v. Singh, [2005] O.J. No. 5754 (C.J.) at 32-33; R. v. Khan,[2009] O.J. No. 6239 (C.J.), at paras. 32-33; R. v. Grubb, [2011] O.J.

No. 6478 (C.J.), at para. 33; and R. v. Deacon, [2012] O.J. No.6351 (C.J.), at para. 33. I have not been provided by a single case by the defence where this argument has been adopted by any court,nor am I aware of any such case. [79] I agree with the Crown that the conveying of grounds by an arresting officer to the qualified technician is superfluous, and thatthe failure to do so does not undermine the grounds for the demand. The demand made by the officer who formed the grounds, in thiscase Sgt. Glionna, is a continuing demand. The qualified technician was entitled to act upon it whether or not Sgt.

Glionna took theextra step of conveying his grounds to the technician. Issue 4: Whether Mr. Robertson right to counsel was infringed due to a failure toafford him privacy for the call to counsel [80] I agree with Mr. Robertson’s counsel that “[a]n individual who enters a hospital to receive medical treatment is not in a Charter-free zone”: R. v. Talyor, 2014 SCC 50 , [2014] S.C.J. No. 50, at para. 34. The police are not exempt from Charter compliancesimply because an impaired driving investigation occurs inside a hospital rather than at the police station.

I agree that the police had anobligation to take reasonable steps to ensure that Mr. Robertson was given the opportunity to consult with his counsel of choice inprivate. [81] In Taylor, supra, the accused was arrested at the scene of an accident for impaired driving causing bodily harm, and was taken tothe hospital for precautionary reasons. He was informed of his 10(

b) rights at the roadside and he expressed a desire to speak tocounsel. The arresting officer took no steps to facilitate Mr. Taylor’s wish to call a lawyer prior to the seizure of blood samples at thehospital, despite the fact that the officer had a cell phone on him. The Supreme Court held that “[w]here the individual has requestedaccess to counsel and is in custody at the hospital, the police have an obligation under s.10(

b) to take steps to ascertain whether privateaccess to a phone is in fact available, given the circumstances” [para. 34]. In my view, Sgt. Glionna did precisely what was required ofhim to facilitate a private conversation between Mr. Robertson and his counsel of choice in the circumstances of this case. [82] Mr. Robertson did not testify or call evidence on the Charter voir dire. It is his onus to prove a breach of his right on a balanceof probabilities. The only evidence before me about the implementation of Mr. Robertson’s right to counsel is the testimony of Sgt.Glionna.

He said that after he formed his grounds to believe Mr. Robertson had committed the offence of impaired driving, that heinformed Mr. Robertson that he was under arrest for this offence at 4:32 a.m. He then informed Mr. Robertson of his right to retain andinstruct counsel without delay using the wording contained in his police-issued notebook at 4:33 a.m. Mr. Robertson said that heunderstood his right to counsel and that he wished to call a lawyer. When asked if he had a particular lawyer in mind or if he wished tocontact duty counsel, Mr.

Robertson asked for time to consider his options. [83] He was then read the breath demand and caution, both of which he also understood. Sgt. Glionna said that the treating physiciancame into the treatment room where he was speaking to Mr. Robertson as he was reading the right to counsel. The physician said hewould wait until Sgt. Glionna finished before examining Mr. Robertson. After rights to counsel, caution and breath demand were read tohim, Sgt. Glionna left the treatment room so that the physician could examine Mr. Robertson. Sgt.

Glionna returned after the physiciancompleted his examination at 4:47 a.m. and asked Mr. Robertson if he had made a decision about which lawyer to call. Mr. Robertsoninformed him at that time that he wished to speak to duty counsel. [84] At 4:50 a.m., Sgt. Glionna placed a call to duty counsel on his work-issued cell phone and left a message. Then, at 5:02 a.m.,

while still waiting for a call back from duty counsel, Mr. Robertson informed Sgt. Glionna that he had changed his mind and wanted to speak to Mark Jacula, a well-known local criminal defence lawyer. Sgt. Glionna was in the process of searching for Mr. Jacula’s contact information when duty counsel called at 5:04 a.m. on his cell phone. Sgt. Glionna provided his phone to Mr. Robertson, and left the room. Mr. Robertson spoke to duty counsel until 5:07. He then told Sgt. Glionna that he still wanted to speak to Mr. Jacula. [ 85 ] Sgt. Glionna found a phone number for Mr. Jacula at 5:08 a.m.

He called this number and left a message. He did not receive a call back from Mr. Jacula at that time. Shortly after, Mr. Robertson was taken for X-rays. By the time he returned, the qualified technician had arrived and set up a mobile instrument for the purpose of receiving and analyzing breath samples from Mr. Robertson. Custody of Mr. Robertson was turned over to the qualified technician at 6:15 a.m. [ 86 ] The technician informed Sgt. Glionna that Mr. Robertson wanted to speak to Mr. Jacula before providing samples of his breath. Sgt. Glionna called the number he had for Mr.

Jacula and left another message at 6:17 a.m. When this message had still not resulted in a call back from Mr. Jacula by 6:34, Sgt. Glionna called another officer and was able to obtain a cell phone number for Mr. Jacula. He called and reached Mr. Jacula at 6:37 a.m. He passed the phone to Mr. Robertson at this time, and received the phone back from him at 6:39 a.m. [ 87 ] Sgt. Glionna testified that the door to the treatment room was glass. When Mr. Robertson spoke to both duty counsel and Mr. Jacula, Sgt. Glionna stepped out of the room. Sgt. Glionna could not remember whether the door was fully shut when Mr.

Robertson spoke with counsel, but he did step far enough back from the door so that he could not overhear the conversation but was able to maintain visual observation of him. In cross-examination, Sgt. Glionna agreed that he could not dispute any claim by Mr. Robertson that his feet were visible to him during the call to his lawyer. [ 88 ] Mr. Robertson, however, did not testify on the Charter voir dire , nor did he call any evidence [3] . Accordingly, there is no evidence before me that he felt constrained in any way by a lack of privacy during his call to either duty counsel or Mr. Jacula.

He certainly did not express any dissatisfaction with the arrangements to either Sgt. Glionna or the qualified technician. In my view, it would be entirely speculative for me to infer that his ability to consult with counsel was affected in any way by a lack of privacy. There is simply no evidence to support his claim. Mr. Robertson has failed to prove a s.10(

b) breach on a balance of probabilities, and this Charter application is dismissed. CONCLUSION [ 89 ] Since I have concluded that there has been no breach of Mr. Robertson’s rights as guaranteed under the Charter , I need not consider whether the results of the analysis of his breath should be excluded from evidence. The readings were obtained through an analysis of Mr. Robertson’s breath by a qualified technician operating an approved instrument. The samples of his breath that were analyzed were provided directly into the approved instrument, which was properly calibrated and in good working order.

There is no issue that the readings were taken as soon as practicable, as the bulk of the lengthy delay was the result of Mr. Robertson’s decision to leave the scene of the accident. The readings are admissible and, in the absence of any evidence to the contrary, are proof that his blood alcohol concentration was 88 milligrams of alcohol in 100 millilitres of blood at 7:05 a.m., which is the lower of the two readings. [ 90 ] The toxicology report offers the expert opinion that Mr.

Robertson’s blood alcohol concentration at the time of driving would have been between 105 and 170 milligrams of alcohol in 100 millilitres of blood based on the readings obtained. It also offers the opinion that the approved instrument used by the qualified technician was working properly. These opinions are unchallenged. The combined evidence of Ms. Leather, Ms. Hartlieb and Cst. Edgar proves that there was no consumption of alcoholic beverages after the incident and before the breath tests. The video surveillance evidence from Frosty John’s Pub proves an absence of any bolus drinking.

I find, therefore, that I am able to rely upon the expert opinion as to Mr. Robertson’s blood alcohol concentration at 2:05 a.m. This accords with the time that the collision is known to have occurred. Mr. Robertson’s statements to Ms. Leather and Ms. Hartlieb coupled with the observations of Ms. Leather who saw him leave the pub, get in the driver’s seat of his vehicle and put on his seatbelt, satisfy me that Mr. Robertson was operating his truck at the time of the collision. [ 91 ] I am satisfied beyond reasonable doubt that Mr.

Robertson had the care or control of his motor vehicle with a blood alcohol concentration that exceeded the legal limit. He is found guilty on count two. [ 92 ] Furthermore, I am also satisfied that the toxicologist’s opinion that “an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range” [4] is reliable.

As the report states, “[t]he operation of a motor vehicle requires the integrity of a variety of sensory, motor, and intellectual faculties including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance and vision. […] Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance.” [ 93 ] I find that Mr. Robertson’s ability to operate his motor vehicle was impaired by alcohol to at least a slight degree.

This finding is bolstered by his own admission, repeatedly made, that he fell asleep while driving, coupled with the surveillance evidence which shows that he consumed a significant amount of alcohol over an extended period immediately before getting behind the wheel of his truck. Although it is true that Mr. Robertson did not display any overt signs of physical impairment on the surveillance footage, that is not the test. Proof of slight impairment of his ability to drive is sufficient, and I am satisfied beyond reasonable doubt that this has been proven. Accordingly, Mr.

Robertson is also found guilty on count one. [ 94 ] I will hear from the Crown as to which charge it wishes to stay to conform with the rule precluding multiple convictions, and I will then hear from counsel on sentence.

Released: August 10, 2017 Signed: “Justice S. W. Konyer”