R. v. Hogan

R. v. Hogan

2006 ONCJ 9
Ontario Court of Justice — Justice F.L. Forsyth | January 17, 2006

Background

Ben Hogan was driving his Jaguar home from an Argonauts football game on June 16, 2004, when P.C. Korda spotted him leaving a park after nearly striking a pedestrian. The officer followed Hogan's vehicle, observed him driving at high speed and making a wide turn into his driveway at 1565 Waterdown Road. When Korda approached, he noticed Hogan using his car door for support, walking carefully, and showing signs of alcohol consumption — glossy eyes, alcohol on his breath, and what the officer described as slightly slurred speech.

Hogan admitted he'd consumed "a couple of beers" at the game. At 12:14 a.m., Korda arrested him for impaired driving and read him his Charter rights. When asked about counsel, Hogan clearly stated: "Yes, I'll waive all that." But Korda had already decided he was going to call duty counsel regardless of Hogan's wishes, citing concerns about Hogan's impaired judgment. The breathalyzer tests eventually showed readings of 118 and 115 mg of alcohol per 100ml of blood.

Issues

1. Were the breath tests taken "as soon as practicable" as required by s. 258(1)(c) of the Criminal Code?
2. Did the Crown prove impairment of driving ability beyond a reasonable doubt?

The Unnecessary Delay

Justice Forsyth found that Hogan had provided a "fully informed and categorical waiver" of his right to counsel. Given his previous impaired driving convictions in 2002 and 2004, plus Korda's own admission that he'd dealt with Hogan professionally before, there was no doubt Hogan understood exactly what he was waiving. The officer himself testified that Hogan was coherent and the waiver was "very clear."

Despite this unequivocal waiver, Korda unilaterally decided to call duty counsel anyway — not because of any genuine concern about Hogan's comprehension, but as a policy decision. This created a 38-minute delay while they waited for duty counsel to call back and complete the conversation. The court found this delay "totally and absolutely unnecessary" and unreasonable under the circumstances. Since the Crown couldn't prove the tests were taken as soon as practicable, they lost the benefit of the s. 258(1)(c) presumption that the breath readings reflected Hogan's blood alcohol at the time of driving.

The Impairment Evidence Falls Apart

On the impaired driving charge, Hogan provided credible explanations for every symptom the officers observed. His "unsteady" exit from the vehicle? He suffered from pinched nerves in his leg after hours of sitting, and the Jaguar was a low-slung car requiring him to push off the door. His "careful" walking? He was wearing flip-flops. His "slurred" speech? He demonstrated in court that his broken dental plate moved around in his mouth, affecting his speech patterns.

Justice Forsyth noted that both officers provided only conclusory evidence about slurred speech without describing specific words or speech patterns that led to their conclusions. After considering Hogan's explanations, which the court found "totally credible," the Crown was left with only "glassy eyes" as evidence of impairment — insufficient to prove impaired driving ability beyond a reasonable doubt under R. v. Stellato.

Key Takeaway

Police cannot unilaterally override a clear, informed waiver of Charter rights just because they think it's in the accused's best interests.

When an accused person clearly understands and waives their right to counsel, police must respect that decision. Creating unnecessary delays for "policy reasons" can destroy the Crown's case by preventing them from meeting statutory requirements like the "as soon as practicable" standard for breath tests.