



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Canavan, 2019 ONCA 567

DATE: 20190704

DOCKET: C66111

Brown, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Canavan

Appellant

Patrick J. Ducharme, for the appellant

Christopher Webb, for the respondent

Heard: June 21, 2019

On appeal from the conviction entered by
    Justice E. Ria Tzimas of the Superior Court of Justice on July 4, 2018, with
    reasons reported at 2018 ONSC 4171.

REASONS FOR DECISION

Overview

[1]

On the evening of June 12, 2015, the appellant,
    Michael Canavan, was driving northbound on Trafalgar Road in the southbound
    lane  the wrong lane  as he was going up a hill. He collided head-on with a
    southbound car as it crested the hill, resulting in the death of the driver of
    the other car, Janice Bye, and injuries to the two passengers. The appellant
    was convicted of impaired operation of a motor vehicle causing death, operating
    a motor vehicle with over 80 mg of alcohol per 100 ml of blood, and two counts
    of driving while impaired causing bodily harm.

[2]

The appellant appeals his convictions. At the
    hearing, we dismissed the appeal, with reasons to follow. These are those
    reasons.

[3]

The appellant advances several grounds of
    appeal, which we deal with in turn.

Violation of s. 8 rights

[4]

Following the head-on collision, the appellant
    was taken by ambulance to the Georgetown Hospital for emergency treatment,
    where the staff drew several vials of blood for analysis. About 10 days later,
    on June 22, 2015, the police seized some of the vials of blood at the Hospital
    pursuant to a warrant. The appellant submits that the trial judge erred in
    failing to find that the blood samples were seized in violation of his s. 8
Charter
rights. The appellant contends that the seizure effectively was a warrantless
    one.

[5]

The appellant repeats the arguments he made at
    trial but were rejected by the trial judge: (i) at the time of the appellants
    admission to the Hospital a police officer, Sgt. Houser, asked a nurse to
    preserve blood samples; (ii) the appellant did not consent to having blood
    drawn; (iii) Hospital staff drew more blood than was necessary for medical
    purposes; and (iv) the Hospital staff acted as agents of the police. The
    appellant relies on the dissent of Pardu J.A. in
R. v. Culotta
, 2018
    ONCA 665, 142 O.R. (3d) 241, affirmed 2018 SCC 57, 429 D.L.R. (4
th
)
    1, at paras. 77-78 and 88-95, to submit that the trial judge erred in failing
    to find that the police had co-opted the Hospital staff to take extra blood
    samples for purposes of the criminal investigation.

[6]

We are not persuaded by the appellants
    submission.

[7]

In her reasons, the trial judge reviewed the
    evidence at length. She considered the evidence of Sgt. Houser and five members
    of the Hospitals nursing staff. The trial judge made numerous findings of
    fact. She found that on the night of the accident: (i) the staff at the Hospital
    acted independently of the police and only in accordance with the attending
    physicians orders; (ii) Sgt. Houser did not speak to the nursing staff on the
    evening of the appellants admission or direct the Hospital staff to draw
    blood; and (iii) the appellant did not refuse blood work and he consented to
    treatment as a trauma patient at the Hospital.

[8]

The trial judge also found that there was no
    evidence that the staff drew more blood than was necessary for medical
    purposes. She also found that: (i) the staff complied with Hospital protocols
    that gave specific directions about how to engage with the police and the
    permitted reasons for drawing blood; and (ii) the Hospital staff were not
    acting as agents of the state.

[9]

Her findings in that regard were not based on
    any misapprehension of the evidence but were fully supported by the evidence.
    Michele Moleta, the nurse who treated the appellant as a trauma patient in the
    emergency room, testified that: (i) she had drawn blood samples on the
    instructions of the emergency room physician; (ii) she had not talked with the
    police; and (iii) she drew the standard number of vials of blood for the
    emergency treatment of a trauma patient. The lab technician who nalysin the
    blood samples, Kathy Lambert, testified that after nalysing the blood samples,
    she took it upon herself to store the vials on a separate rack in the central
    fridge. She knew there was alcohol involved and the samples might be needed for
    testing later. Joanne Johnston, the team leader of the Hospitals lab
    technologists, testified that on June 19, 2015 she received a phone call from
    the police asking if blood samples from the appellant were still in the lab.
    She checked the labs main refrigerator, found some blood samples, and turned
    them over to the police when they served the warrant a few days later.

[10]

On the basis of the findings she made, the trial
    judge found no breach of the appellants s. 8 rights. The appellant has not
    demonstrated that the trial judge made any palpable and overriding error in
    those factual findings. Those facts distinguish the present case from the
    circumstances in
Culotta
. Accordingly, we would not give effect to
    this ground of appeal.

Violation of s. 10(b) rights

[11]

Second, the appellant argues that the trial
    judge erred in failing to find that his s. 10(b) rights were violated.

[12]

Again, the trial judge conducted a detailed
    review of the evidence. The appellant was trapped in his car at the scene of
    the collision before he was extricated and moved to an ambulance on a
    backboard. He was then taken to the Hospital. After treatment by emergency
    staff, the police talked to the appellant and ultimately a breathalyzer
    technician administered a breath test to the appellant at the Hospital.

[13]

The trial judges reasons disclose that she
    accepted that the police discharged the informational and implementation
    elements of s. 10(b) in the following manner:

(i)

in the ambulance Sgt. Houser placed the
    appellant under arrest for impaired driving causing death and read him his
    rights to counsel. The appellant said he did not want to speak to a lawyer;

(ii)

at the Hospital, Sgt. Houser again discussed
    with the appellant arrangements to speak with a lawyer. The appellant could not
    recall the name of his lawyer and asked Sgt. Houser to contact his wife to
    obtain the name. Sgt. Houser called the wife and left a message;

(iii)

in the meantime, the appellant recalled the
    lawyers name. Sgt. Houser called the lawyers office and left a message on his
    voicemail;

(iv)

the lawyers office voicemail provided a cell
    phone number to which a text message should be sent. Sgt. Houser instructed
    another officer to send a text to that number, which was done, but there was no
    response;

(v)

Sgt. Houser advised the appellant that duty
    counsel was available but the appellant did not want to speak to duty counsel;

(vi)

Prior to administering the breathalyzer test,
    the technician officer advised the appellant of his right to counsel. The
    appellant stated he wanted to speak to his lawyer and not to duty counsel. The
    technician advised that the lawyer had not responded to contact attempts;

(vii)

The officers did not provide the appellant with
    a phone book or any other resource to look for another lawyer. A Hospital nurse
    testified that she did not know if the Hospital even had a phone book and a Hospital
    computer would not be made available to the appellant, even if requested by the
    police;

(viii)

Almost three and one-half hours elapsed between
    the time of the collision and the administration of the breathalyzer test at
    the Hospital at around 2 a.m. on June 13, 2015; and

(ix)

The appellants lawyer did not respond to the
    contacts made by the police until close to 9 a.m. on June 13.

[14]

Drawing on those findings, the trial judge was
    unable to accept the appellants argument that the efforts of the police to
    facilitate the appellants communications with counsel of his choice were
    inadequate or that the police failed to show reasonable diligence. She
    concluded that the police did not treat the Hospital as a 
Charter
-free
    zone, tried to facilitate the appellants communications with counsel immediately
    upon arrival at the hospital, and made several efforts to contact counsel of
    choice in the middle of the night. Given the appellants firm position that he
    wanted to speak to counsel of choice  not to duty counsel  the trial judge
    concluded that she did not see how the appellant would be willing to trust some
    lawyer picked out of a phone book or electronic directory. In those
    circumstances, she found no breach of the appellants s. 10(b) rights.

[15]

The appellant does not submit that the trial
    judge committed any error in principle in arriving at her conclusion. Instead,
    the appellant contends the trial judge erred by failing to find that in the
    circumstances the police were not reasonably diligent in facilitating the
    appellants ability to contact counsel. The appellant contends that the police
    should have done more to facilitate putting him in touch with his counsel of
    choice. Specifically, he contends that the police should have phoned counsels
    cell phone number, and not simply sent a text.

[16]

Absent palpable and overriding error, the trial
    judges findings on this issue are entitled to deference. The appellant has not
    demonstrated any such error. As to the appellants contention that police
    efforts were insufficient because an officer did not follow up a text to the
    counsel of choice with a call to the lawyers cell phone number, the evidence
    from Sgts. Houser and Porterfield, taken together, was that the message played
    on the lawyers office phone directed that a text be sent to the specified
    number. The police followed the preferred method of communication identified by
    the counsel of choice.

[17]

Accordingly, we see no basis to interfere with
    the trial judges conclusion that the police showed reasonable diligence in the
    circumstances to facilitate the appellants exercise of his s. 10(b) rights. We
    do not give effect to this ground of appeal.

The involvement of a third vehicle

[18]

A brief review of the evidence is required to
    place the appellants third ground of appeal in context.

[19]

The appellant testified that he did not recall
    the collision. He assumed that he moved out of the northbound lane into the
    southbound lane at some point as he began to go up the hill. He saw lights
    coming towards him in the northbound lane, directly in front of him, and then
    remembered two sets of headlights at the point of collision.

[20]

Two cars were travelling southbound on Trafalgar
    Road some distance behind the Bye car. The car driven by Bramling Douglas was
    about 300 feet behind the Bye car. In his statement to the police, Mr. Douglas
    recalled seeing two vehicles travelling south ahead of him with two sets of
    tail-lights, with one set in the northbound lane going south. At trial, he
    could not say whether there was another vehicle travelling south in the
    northbound lane.

[21]

Further back was a truck driven by Chad Vinden.
    Just prior to the collision, he saw a car ahead of him (the Douglas vehicle)
    and, ahead of that, two sets of tail-lights with both travelling in the
    right-hand, southbound lane. After the collision, one set of those tail-lights
    continued south.

[22]

The Crowns accident reconstruction expert, Cst.
    Blacklock, testified that: the collision occurred entirely in the southbound
    lane of Trafalgar Road; the collision was head-on, not at an angle, with a very
    severe impact; and she could not identify any physical evidence that would
    explain why the appellants car entered the southbound lane.

[23]

The defence called Thomas Flynn as an accident
    reconstruction expert. He did not dispute the findings of Cst. Blacklock. He
    opined that there was nothing on the road that would have prevented a third
    vehicle from passing the Bye car and that of the appellant without leaving any
    marks on the ground.

[24]

During cross-examination, it was put to Mr.
    Flynn that if there had been a third car travelling southbound in the
    northbound lane, parallel to the Bye car, then:

[S]omeone who was coming up the crest of that
    hill, also in the northbound lane wouldnt have seen that vehicle?

Mr. Flynn: Ah, the  most likely would have
    seen headlights appearing over the  like light shining over the top, but a
    direct sight line, I dont think that was possible, no.

Q: Okay. So, do you think that  that same
    northbound vehicle were talking about hypothetically could see the  the shine
    of the head  of the [victims] headlights in the southbound land?

Mr. Flynn: Ah, possibly, but light coming over
    the top of the hill could also just appear as  as single set of lights, if you
    cant see the lights themselves. Just the shine
could appear
to be one set of headlights. [Emphasis
    added.]

[25]

In her reasons, the trial judge reproduced the
    last portion of Mr. Flynns answer as: Just the shine
would appear
to be one set of
    headlights. (emphasis added)

[26]

The appellant contends that the trial judges
    incorrect rendering of Mr. Flynns answer of could appear as would appear
    amounted to a misapprehension of his evidence. In the appellants submission,
    Mr. Flynns evidence amounted to saying that the shine could appear to be two
    sets of lights or one set of lights.

[27]

We do not accept this submission.

[28]

The trial judge relied, in part, on that portion
    of Mr. Flynns evidence to conclude that the appellant was impaired on the
    night of the collision because the evidence undermined the appellants theory
    that he saw two sets of headlights coming towards him as he approached the
    crest of the hill. The trial judge explained, in para. 276 of her reasons:

In other words, the lights on the other end of
    the crest could not be attributed to a third car. Since we know that Mrs. Bye
    was driving southbound, in the southbound lane, the shine of lights on the
    other side of the crest would be coming from her car. On that aspect of Mr.
    Flynns evidence the light shine or glow from the crest of the hill was not
    from any third car. Mr. Canavan would not have seen a distinct set of
    headlights, as he said he did. He saw a shine from a single set of lights. His
    inability to process what he saw is the first indicator of impairment.

[29]

In our view, the trial judges conclusion that
    the appellant would not have seen a distinct, second set of lights, was not
    based on a misapprehension of Mr. Flynns evidence; it was an inference fairly
    drawn from it. Taken as a whole, Mr. Flynns evidence was that a northbound-travelling
    car approaching the crest would see a shine of approaching lights over the
    crest, not distinct, separate headlights. We see no error that warrants
    appellate intervention.

Bolus drinking

[30]

At trial, the appellant gave a detailed
    description of his pattern of drinking just prior to the collision: he testified
    that he had consumed three tall-boys of beer within 25 or 30 minutes. As his
    final ground of appeal, the appellant argues that the trial judge erred in
    rejecting that evidence. The appellant contends that: his evidence was credible
    and should have been believed; and, the trial judge erred in rejecting it as
    implausible and contrived by relying on the common sense inference that people
    normally do not ingest large amounts of alcohol just prior to or while driving:
    see, for example,
R. v. Paszczenko
, 2010
    ONCA 615, 103 O.R. (3d) 424, at para. 29.

[31]

According to the appellant, on the night of the
    collision he had visited an Oakville hockey rink to scout hockey players. He
    had nothing to drink at the arena. The hockey rink was a one-hour drive from
    his home. On his way home, he stopped at his brothers house in Georgetown,
    which is about a 20-minute drive from his home and an eight-minute drive to the
    collision scene. The appellants brother was not home. The appellant testified
    that he decided to wait for his brother to return. He went into his brothers
    garage, opened a fridge, and over the course of 30-minutes consumed three
    tall-boy cans of beer. The appellant tired of waiting, got into his car, drove
    up Trafalgar Road, and collided with the Bye car.

[32]

The trial judge did not believe the appellants
    evidence about his pattern of drinking prior to the collision. She gave
    extensive reasons explaining why she rejected his evidence on that point: (i)
    the appellant did not explain why he drank the way he did that night,
    especially when there was no reason for him to be as thirsty as his conduct
    would otherwise suggest; (ii) he gave no explanation for his rush to finish
    the three drinks in the given twenty-five minutes; (iii) his detailed account
    of his pre-collision drinking stood in stark contrast to his casual or
    approximate memory of his activities just prior to his alleged drinking and the
    of course of his virtually complete inability to remember anything about the
    accident and the several hours that followed, which led the trial judge to
    characterize his memory of the drinking as highly suspect; (iv) his idea of
    bolus drinking was contrived to produce the lowest possible BAC, given that
    two of the three tall-boys would have had to be consumed in the 15 minutes
    prior to the collision; (v) his description of the drinking stood in contrast
    to statements he gave to other individuals about his evenings activities; and
    (vi) the appellants suggested pattern of drinking defied common sense,
    including the common sense inference that people normally do not ingest large
    amounts of alcohol just prior to or while driving.

[33]

In support of his submission that the trial
    erred in rejecting the evidence concerning his pre-collision pattern of
    drinking, the appellant advances two arguments.

[34]

First, the appellant submits that in her
    assessment of his credibility the trial judge did not give effect or sufficient
    weight to statements he made to a paramedic while he was trapped in his car and
    to a police officer while he was in the ambulance that he had consumed three
    tall-boys. We are not persuaded by this submission. In the section of her
    reasons dealing with the voluntariness and admissibility of statements made by
    the appellant to the first responders, the trial judge reviewed the statements
    he made at the scene and in the ambulance about consuming three tall-boys. From
    the structure of her reasons, it is evident that the trial judge drew, in part,
    upon that evidence when making her credibility assessment.

[35]

Second, the appellant contends that the trial
    judge erred in relying on the common sense inference because there was
    credible evidence of bolus drinking. However, the only evidence of the
    appellants pattern of drinking was his own testimony. The trial judge made a
    clear finding about the appellants credibility on this point: she did not
    believe him.

[36]

Appellate courts show great deference to
    findings of credibility made at trial, recognizing the special position of the
    trier of fact on matters of credibility, including the advantage enjoyed by the
    trial judge of seeing and hearing the evidence of witnesses:
R. v. W.(R.)
,
    [1992] 2 S.C.R. 122, at p. 131.
I
n respect of a finding of credibility by a trial judge, an appeal
    court must defer to the conclusions of the trial judge unless a palpable and
    overriding error can be shown. It is not enough that there is a difference of
    opinion with the trial judge:
R. v.

Gagnon
, 2006 SCC 17, [2006]
    1 S.C.R. 621, at para. 10.

[37]

In the present case, the trial judges detailed
    reasons display a strong grasp of the evidence and the parties arguments. As
    well, her reasons offer a full explanation for the findings of fact she made
    regarding the appellants pre-collision drinking. In assessing the appellants
    credibility, it was open to the trial judge to rely on the common sense
    inference of drinking at a normal pace:
Paszczenko
, at paras. 29 to
    34. However, as her detailed reasons disclose, that was only one of several
    factors that led her to reject the appellants evidence. The appellant has
    failed to point to any clear and significant error in the fact-finding process
    articulated in the trial judges reasons. Consequently, we do not give effect
    to this ground of appeal.

Disposition

[38]

For these reasons, we
    dismissed the appellants appeal from conviction.

David Brown J.A.

B.W. Miller J.A.

G.T. Trotter J.A.


