R. v. Taylor, 2011 ABQB 543

Court of Queen ’ s Bench of Alberta Citation: R. v. Taylor, 2011 ABQB 543 Date: 20110914 Docket: 080816713Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Jamie Kenneth Taylor Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] In this matter the accused raises three issues, as follows: 1. The RCMP violated the Accused’s 10(

b) Charter right by failing to provide him an opportunity to retain and instruct counsel without delay. 2. The said violation of the Accused’s 10(

b) Charter right is inextricably linked to the production of the hospital blood which the Crown relies upon and seeks to have admitted into the trial proper.

3. The Information sworn to obtain the warrant which authorized seizure of the hospital blood was insufficient. [ 2 ] Evidence has been taken on a voir dire with a view to determining these three issues. Evidence was received from the investigating officers McGillivray and MacNamara, the paramedic Wallace, in attendance at the scene and who transported the Accused to the hospital, passengers Chanel Sponchia, Meghan Taylor, Kristen Flanagan and Douglas Thomson; and witnesses to the accident, Krista Sutherland (née Vassie), Valerie Vassie, Laura Breakey and Ryan Hehr.

Constable Michael Dunsmore, who became the lead investigator on the file, gave evidence as to his involvement at the accident scene and thereafter. In addition, some preliminary inquiry evidence was admitted by consent. [ 3 ] The Accused Taylor was not provided an opportunity to exercise his right to counsel at any point during the course of his detention by the RCMP. However, the conscriptive evidence compelled from the Accused and seized by the RCMP in the course of this Charter violation is not being tendered by the Crown.

Rather, the Crown relies upon the hospital blood evidence seized by the hospital and subsequently obtained by the police by means of a search warrant. [ 4 ] Constables MacGillivrary and MacNamara attended a motor vehicle accident scene near Cochrane, Alberta. The Accused was approached by Constable MacGillivray. Constable MacGillivray stated he could smell liquor on the Accused’s breath, he stuttered when he spoke, and en route to the police car he swayed while standing and staggered a bit while walking. He described his eyes as red and glossy and indicated that he appeared emotional.

Once inside the patrol car, at 1:41am, MacGillivray arrested Taylor for the offence of impaired driving causing death, based on information received from another officer at the scene, that a passenger was dead. The charge was soon revised to impaired driving causing bodily harm. Taylor indicated that he understood. When asked if he wanted to call a lawyer, he said he wanted to call his father and for a lawyer he wanted to call Mr. Fagan. [ 5 ] MacGillivray read the Accused his constitutional rights. He told the Accused that he had a right to retain and instruct counsel right away.

MacGillivray said that if the Accused wanted to call a lawyer he would be provided with a telephone. [ 6 ] In fact, no telephone was provided to the Accused at the scene of the accident. The paramedic Wallace attended to Taylor, first in the back of the police car, and, at 2:13am, they walked him over to an ambulance to be assessed therein. Initially the Accused was not co-operative. That changed when the paramedic explained that the information he sought related to patient care. Wallace and his partners conducted a physical examination to determine whether Taylor suffered any injuries in the accident.

He checked the Accused for vital signs and asked him questions pertaining to his medical history and particulars of the accident. In response to Wallace’s questions, the Accused stated he was the driver of the vehicle involved in the accident. Wallace gave evidence that the Accused admitted consuming alcohol. He was in close proximity to Taylor throughout this time, and throughout the ambulance ride, but did not recall smelling any alcohol emanating from the Accused. [ 7 ] The Accused “was well ambulatory with no neural deficits”.

The Accused’s speech was fine, he was alert, there was no slurring or impediments to his speech and he answered questions appropriately. The Accused made no medical complaints. While Wallace did not feel there was anything wrong with the Accused, out of an abundance of caution, and in accordance with normal practice, the Accused was placed on a backboard and transported by ambulance to hospital for assessment.

At first the Accused did not want to go to hospital, but Wallace talked him into it. [ 8 ] Constable MacIntyre’s evidence was given at the Preliminary Inquiry and, by agreement, admitted into evidence in the voir dire . MacIntyre did not recall smelling any alcohol from the Accused. MacIntyre’s notes do not make indication of any signs of impairment. [ 9 ] The ambulance left the scene at 2:19am to transport the Accused to the Foothills Hospital. The police did not attend in the ambulance, but met the ambulance at the hospital. Constable MacGillivray and Constable MacNamara attended at the Foothills Hospital.

MacNamara’s assignment was to track blood samples obtained by the hospital, for continuity so that a warrant could be applied for. She knew it was a common practice for RCMP members to obtain warrants to seize blood samples taken for medical purposes in hospitals in cases like this, so it was important to keep the suspect under continual observation, maintain accurate records and track the blood for purposes of providing an Information to obtain a warrant.

[ 10 ] Once the Accused was taken into the Foothills Hospital, he was attended to at emergency where his information was submitted. Thereafter he waited in a monitored hallway on a hospital gurney, until approximately 3:05-3:09am, whereupon he was taken into a curtained area and attended to by medical practitioners. The paramedic Wallace indicates that he attended into the curtained area as well as a bedside nurse, a physician and Constables MacNamara and MacGillivray. The blood was drawn by the nurse at 3:09am according to MacGillivray’s watch or 3:05am according to MacNamara.

MacNamara then tracked the blood from that point while it was entered and recorded by the hospital. [ 11 ] Once the blood had been drawn, Constable MacGillivray read the Accused a Demand for Blood Samples. Blood was drawn from the Accused, pursuant to the police demand, at 4:53am (the Demand Blood). [ 12 ] At no time while the Accused was at the hospital did either of the police officers take any steps towards affording the Accused the opportunity to speak to counsel. MacGillivray’s evidence, as the arresting officer, is that he made a mistake.

He explains that there was a lot going on at the hospital and he did not think to put his cell phone to the Accused’s ear, or obtain a phone number for him. He explains that this was his first Blood Demand case and he just did not think of it. He acknowledges that he had a cell phone with him. [ 13 ] Constable MacNamara treated the Accused as being Constable MacGillivray’s responsibility. She did not know whether the Accused had been advised of his right to counsel, and she took no steps to inquire.

Nor did she take any steps to facilitate a telephone call for the accused. [ 14 ] Constable MacGillivray was told to apply for a warrant to seize the hospital blood. Constable MacGillivray prepared an ITO for a search warrant to seize the blood for evidentiary purposes. He then obtained the blood from the Foothills Hospital storage lab on March 19 th 2008, then sent it to the police laboratory for analysis. [ 15 ] The Demand Blood was also sent away for analysis. Certificates were issued in respect of both sets of blood. Issue No.1 The RCMP violated the Accused ’s 10(

b) Charter right by failing to provide him an opportunity to retain and instruct counsel without delay. [ 16 ] Counsel for the Accused urges the Court to find that the Accused’s right to speak to counsel, provided by

section 10(

b) of the Charter of Rights and Freedoms , was violated in that the RCMP did not allow him to contact counsel at the accident scene, nor did they do so at the hospital prior to the taking of the hospital blood. He notes that the Accused was advised of the right to retain and instruct counsel without delay. However, once the Accused indicated that he wished to speak to counsel, the implementation of the right was not facilitated by the police.

He notes, and I agree, that once the detainee indicates a desire to exercise his right to counsel, police are obliged to provide the detainee with a reasonable opportunity to exercise that right. Police must refrain from interviewing the detainee until the detainee has exercised or waived that opportunity. The Crown bears the burden of proving that a detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise that right. It is clear, in this case, that at no time during the detainment was the request of the detainee honoured by the RCMP.

At the Accident Scene [ 17 ] The Crown maintains that it would be inappropriate for the RCMP to have afforded the opportunity to exercise this right at the accident scene. The Crown said that, looked at objectively, this approach would not have been practicable nor reasonably compatible with other concurrent expectations. [ 18 ] Constable MacGillivray noted an inability to provide phone books or lawyer or Legal Aid numbers at the police cruiser. That difficulty, however, could have been overcome by a telephone call to 411.

Constable MacNamara indicated there were a number of reasons why she would not attempt to facilitate an Accused’s contact with counsel from the rear of a police cruiser car. She noted that the telephone in the police cruiser is hard wired, such that, to use that telephone it would have to be passed through the partition in the

vehicle and she emphasizes security concerns relative to doing so. She cited instances where detained persons have squeezed through thepartition and actually stolen police cars, and further emphasized that such access to the front cabin of the cruiser car would permitpotential access to the vehicle’s shotgun. Constable MacNamara could not recall whether she had a cell phone with her at the time.However she said it was not her practice to provide access to counsel within the confines of a cruiser car while at a crime scene, whetherit be a cell phone or a phone within the cruiser car.

Constable Dunsmore indicated that facilitating access to counsel within the confinesof a cruiser car is almost unheard of, citing officer safety as the first and foremost consideration, and also noting the privacy concern,that is the difficulty or inability to provide privacy to the accused while he made his telephone call to counsel. The Crown notes that callsmade by accused persons in the presence of police are of doubtful value, that police are not entitled to know what was said, and the lessthan halfway measure of overheard consultation is an inadequate alternative, citing R. v.

Nelson, 2010 CarswellAlta 2264 - ABCA. [19] R. v. Nelson, supra, also gives guidance of what a “reasonable opportunity” might be, emphasizing that people are not alwaysarrested in locations where it is possible for police to implement access to counsel and noting that “immediacy” does not meaninstantaneously. Practical considerations still play a role, particularly with respect to the police’s obligation to implement an arrestedperson’s contact with counsel. In R. v.

Bartle, (SCC), [1994] 3 S.C.R. 173 at para.18, the Supreme Court of Canada setout the duties on state authorities who arrest or detain a person as follows: 1.

To inform the detainee or his or her right to retain and instruct counsel without delay and of the existence and availability ofLegal Aid and duty counsel; 2. if a detainee has indicated a desire to exercise his right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and 3. to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [20] The Crown argues that there was no “reasonable opportunity” at the accident scene, and that the accident scene might well beseen to be urgent circumstances, qualifying as an exception to the police obligation. [21] I find that the Accused’s

section 10(

b) Charter rights were not violated at the scene of the accident. I am satisfied that thepolice had legitimate safety concerns which rendered it unreasonable to provide cell phone access to the detainee while at the accidentscene, whether in a police car or elsewhere. The police must control the detainee during this period of time, and the most reasonableplace for control is in the back of the police vehicle.

Providing the police cruiser phone to the accused would be unreasonable andunsafe, as, to do so, the cell phone would have to be passed through an open partition in the police car, which could provide the accusedaccess to the vehicle, or the shotgun, or to make escape, particularly if privacy for that call to counsel was being provided to the accusedwhile he was in the police car. [22] I do not consider that the police are obliged to provide their personal cell phones to the accused for the purpose of making thetelephone call.

I do not consider that police should be required to carry a police wireless cell phone in the vehicle for the purposes offacilitating the accused’s right to counsel. Giving the accused privacy while using such a device could result in misuse of the telephonefor other, inappropriate purposes. At the Hospital [23] The Accused was taken by ambulance to the hospital, whereupon he was again met by the RCMP. He was admitted toEmergency, then waited in a monitored area until such time as he was taken into the curtained area for medical attention.

During thisperiod of time, the Accused maintains that police should have facilitated his right to speak with counsel. Constable MacGillivraymaintains that he simply did not think of it. Constable MacNamara says he was not her responsibility and she did not direct her mind to it. [24] The Crown maintains that during the period preceding the taking of the hospital blood the Accused was in the care of thehospital with the RCMP simply observing. The RCMP did not request that the hospital take the blood samples and was not involved inthe decision to do so.

In this regard, I note that there is no evidence whatsoever of collusion between the police and hospital personnel,and no evidence that the police made a request of hospital personnel that a blood sample be taken. I have no evidence from the hospitalpersonnel whatsoever. The police officers have denied making any such request, and none has been proven. Accordingly, I find that thehospital personnel were not acting as agents of the police in taking the blood samples.

[25] On this point, the Crown refers to the decision of the Alberta Court of Appeal in R. v. Willier, 2008 ABCA 126 ,2008 CarswellAlta 404, at para. 18 as follows: The police first took the accused to a hospital to deal with his intoxication. This delay occurred after Willier told the police that hewanted to see a lawyer and did not want to be questioned. The arrest occurred at midday and it was not until 5:40pm that the police spoketo Willier again about calling a lawyer. In the interim, Willier presumably received medical attention at the hospital.

However, the policedid not deal with Willier’s implementation rights during that same interval. No breach was found for that period of non-implementation.The reasons are simple and obvious. Dealing with Willier’s medical concerns was reasonable in the circumstances. The police did notelicit any evidence from Willier during the time he received medical treatment. [26] In R. v. Compagna, 2008 ABQB 79, this Court considered a similar argument.

Germain, J. commented (para. 29): [The officer] concluded that there was no practical ability to get the accused access to a lawyer at that point, while he was in theemergency room at the hospital. A suggestion that the police officers are to interrupt medical proceedings going on in a busy emergencyarea of a large metropolitan hospital to ensure that a suspect who is also receiving medical treatment is given a private and immediateright to counsel is in my view an unduly rigid

interpretation of the rights afforded Canadians by the Charter. His observation that theaccused was still under medical care and could not be given private telephone access is reasonable. In a similar vein is R. v. Purdon,1989 ABCA 297 , [1989] 100 A.R. 313 (Alta C.A.). It was both reasonable and practical for the police to conclude that theycannot accommodate the privacy rights that Roger Compagna was entitled to once he asked for legal counsel. The only option open tothem was to discontinue questioning, until those rights of access to counsel could be accommodated.

They did this. [27] I agree with the reasoning in these decisions, and consider that it applies to this situation. Where the accused is awaiting orreceiving emergency medical treatment, there is no reasonable opportunity to provide private access to the accused to a telephone toimplement his right to instruct counsel. [28] Accordingly, I conclude that the Accused’s

section 10(

b) Charter rights were not violated while the Accused was at thehospital and prior to the taking of the hospital blood. [29] Had there been evidence of collusion between the RCMP and the hospital, that the hospital was really taking the blood samplefor the purposes of the RCMP, then I would have reached a different conclusion. In such circumstances, it would be incumbent upon theRCMP, before the blood sample was taken, to facilitate the Accused’s right to counsel.

That, however, is not the case before me. [30] Thereafter, it is clear that the Accused’s right to counsel was indeed violated, when Constable MacGillivray issued a demandto the Accused that he provide a blood sample, yet did not take steps to implement the Accused’s right to counsel. However, the Crowndoes not seek to admit any statement made by the Accused, nor does it seek to admit the demand blood sample and its analysis, properlyrecognizing that the Accused’s

section 10(

b) Charter rights were breached before such evidence was conscripted or obtained. [31] The Accused’s counsel maintains that, had the opportunity been provided to the Accused to speak with counsel, competentcounsel would have determined that he was not in need of medical intervention, and would have advised him not to allow the hospital totake a blood sample. No evidence was called as to what counsel would have advised; rather counsel indicates that any competent counselwould have provided that advice. That may or may not be the case. No evidence was called on the point. However, given that I havedecided that the Accused’s

section 10(

b) Charter rights were not violated prior to the taking of the hospital blood, the point is mootherein. Issue No.2 The said violation of the Accused’s 10(

b) Charter right is inextricably linked to the production of the hospital blood which theCrown relies upon and seeks to have admitted into the trial proper. [32] Because I have determined that the Accused’s

section 10(

b) Charter rights were not violated, Issue No.2 does not arise.

Issue No.3 The Information sworn to obtain the warrant which authorized seizure of the hospital blood was insufficient [33] The law in this area is well summarized in the decision of R. v. LaChappelle, 2003 CarswellOntario 5289, Ontario SuperiorCourt of Justice, which considered the leading Supreme Court of Canada case in R. v. Garofoli (1990), (SCC), 60 CCC(3d) 161: 51 It is well settled law that a court reviewing the sufficiency of the information in support of a search warrant should do so on the basisof the corrected and the amplified record: R. v. Garofoli (1990), (SCC), 60 CCC (3d) 161 (SCC) and R. v.

Plant (1993), (SCC), 84 CCC (3d) 203 (SCC). That is, the reviewing court must examine the contents of the Information sworn to bythe officer applying for the warrant, delete any false or misleading statements, and then add in any further evidence that has come to lightsubsequent to the issuance of the warrant, to determine whether the resulting body of information, if it were known by the issuingjustice, would have been sufficient to issue the warrant.

The reviewing court must not substitute its view as to whether the warrant shouldhave been issued, but only whether the issuing justice could have granted the warrant had he or she been aware of the amplified record.See Garofoli. Deliberate attempts by the officer to mislead by the inclusion of inaccurate information, the exclusion of relevant material,or if the officer has an improper motive, will render it more difficult for the reviewing judge to approve the issuance. But such conductdoes not automatically vitiate the warrant. See R. v. Morris (1998), 1998 NSCA 229 , 134 CCC (3d) 539 (NSCA).

The courtmust still determine whether the improper conduct and resulting product of information would have had a material impact on the issuingjustice. If so, the warrant must be quashed, the search and seizure declared a violation of

section 8 and a consideration of section 24(2) beundertaken to determine if the evidence should be admitted, notwithstanding the

section 8 breach. [34] The Accused cites the following instances, contradictions or inadmissibilities, listed by the impugned paragraphs in theInformation to Obtain a Search Warrant provided by Constable MacGillivray pursuant to which the search warrant allowing for theseizure of the hospital blood samples was issued by Judge Reilly: 97. Reviewing the ITO respecting the hospital records and blood samples, the following contradictions and inadmissibilities arebrought to mind, listed by the impugned paragraphs. 3.a.

At trial, Thompson testified that he could not say what Jamie Taylor was drinking that night, or even whether Taylor had beendrinking that night. The affidavit, as worded, implies Thompson saw Taylor drinking alcohol. 3.1. Thompson admitted to being “in a state” that night. Had MacGillivrary been forthright, he would have clarified that Thompsonwas in a state of intoxication. 4.e. The affidavit correctly indicates that Krista Vassie called her mother for a ride home but neglects to indicate she did so becauseshe felt unsafe to drive given her own alcohol consumption that night. 5.b,c.

Valerie Vassie was unable to recall identifying particulars of the truck that passed her north of Cochrane, so she could not be surethe same truck was the one she saw roll south of town. 5.6. Valerie Vassie saw Jamie Taylor moving around the accident scene. Though the affidavit states he was staggering, in evidenceVassie described the signs of shock she had learned in her first aid training: disorientation; highly emotional; shaking; trembling; offbalance; vomiting. She testified that Jamie Taylor was displaying symptoms consistent with shock at the accident scene. 5.i.

Although the affidavit says Valerie Vassie could smell alcohol on Taylor's breath, she testified on the voir dire that she couldsmell alcohol on him, but was unable to ascertain its source. 6. The affiant’s synopsis of Laura Breakey’s statement would be incomplete without reference to her testimony that she was very

close to Taylor, who was “definitely shocked,” but evinced no signs of impairment. Breakey could “not really smell for sure” any scents emanating from him, but detected no hint of alcohol. His speech and ability to walk seemed fine, given the circumstances. 8.e. The stated that Cst. MacIntyre indicated alcohol was a contributing factor is in stark contrast with his trial testimony, that he, an experienced officer, had no note of any signs of impairment, though he should have written it down had he made such observations. 11.

In the affidavit, MacGillivray lists six alleged indicia of impairment, and admits only the last one is also consistent with being in a serious collision causing severe injury to a family member. At trial the accident explained several factors, such as red eyes from crying and shock from the accident, which would have been triggered an emotional state in sober people. The affidavit failed to mention that Taylor’s cognitive functions appeared fine: he understood his rights to counsel after one reading and followed all instructions promptly. 12.

MacGillivray swore that he formed the opinion that Taylor’s ability to operate a motor vehicle was impaired by alcohol, which is the basis to trigger a breath demand that must be given forthwith or as soon as practicable. He then arrests Taylor, but declines to utter the breath demand for another hour and twenty minutes. 16. Taylor asserted his right to counsel at about 1:43 a.m. but was not given the opportunity to make the call, nor did he waive his rights. 19. It appears Taylor was in the patrol car for the next half an hour before being moved to the ambulance. Cst.

MacGillivray was instructed by a superior officer to obtain blood samples from Taylor, bur he had yet to make the demand. 20. The warrant makes no reference to the recollection of paramedic Wallace who was in close proximity to Taylor, but did not recall smelling any alcohol emanating from his patient. 21.a-e. MacGillivray keeps watch over the arrested Taylor for twenty minutes in the triage area without offering him an opportunity to call a lawyer. Nonetheless, he made note of four alleged statements made by the accused during that time, all of which are inculpatory.

They refer to going to jail, driving a vehicle, being blamed for the accident, and drinking alcohol that night. If a s.10(

b) breach precedes these utterances, they should be excised from the ITO. 22.f. Cst. Macnamara elicited information from the accused to confirm he was the driver of the accident vehicle. Her evidence on the voir dire showed she did so without regard to whether he had been given a right to consult counsel first. 25. Taylor did not complain of pain to the doctor. 36.e. The cause of the accident appeared to be excessive speed. The vehicle was traveling too fast for the road conditions. [ 35 ] The Court has reviewed the evidence and finds as follows: [ 36 ] 3.a. (this should be 3.d).

Doug Thomson testified on cross-examination that he did not know whether the Accused had been consuming alcohol. The inference from paragraph 3(

d) of the ITO is that it was alcohol. Constable MacGillivray appears to have drawn that inference. The inference was reasonable. There is no attempt to mislead by Constable MacGillivray. Were this the only evidence of the ingestion of alcohol by the Accused, it would vitiate the search warrant. However, it is not the only such evidence. [ 37 ] 3.l. Constable MacGillivray recited what was told to him by Thomson and there is nothing misleading in him doing so.

[ 38 ] 4.e. The ITO neglects to indicate that Krista Vassie sought a ride home because of her own alcohol consumption. However, I find that to be immaterial to the issue. It would not have dissuaded the Issuing Judge. [ 39 ] 5.b/c. While Valerie Vassie was not absolutely sure that the truck in the collision was the same truck that had passed her moments before, the inference is inevitable. The voir dire evidence supports that conclusion. [ 40 ] 5.g. The affidavit says Valerie Vassie said that the Accused was staggering.

Her evidence before the Court in the voir dire was that he was very disoriented, acting chaotically, was frantic and was screaming for his sister. She noted that his symptoms were consistent with shock, which she understood from her first aid training. She noted that he was shaking, tremoring, and his balance was off. At the voir dire transcript, page 173 at line 7, she notes: “He was staggering.” The Issuing Judge has not been misled. [ 41 ] I do not find that there has been any misrepresentation by Constable MacGillivray in his description, taken from Ms. Vassie’s statement.

I do not find that he has misrepresented the information that she has provided. While, at trial, she noted that many of the indicia that she had observed were consistent with shock and anguish over his sister, I do not find that such information has been excluded by Constable MacGillivray. Further, having heard that evidence at trial, I do not consider that her evidence has been misstated or edited to obtain the search warrant. [ 42 ] 5.i. The variation cited does not change the substance and there is no evidence that the original description in the ITO was a product of fraud, or misrepresentation at any time.

It was the information available to Constable MacGillivray at the time. Having heard Ms. Vassie’s evidence on the stand, I note that she denies being able to tell where the alcohol scent came from, other than it was “on him”. Had she provided such a statement at the time, and had that statement been provided to the Issuing Judge, no different inference would have resulted. [ 43 ] 6. Laura Breakey did testify that she “couldn’t really smell for sure” and that she thinks the Accused’s speech was fine and his walk seemed fine. Constable MacGillvray did not make note of Ms. Breakey’s observations of the Accused.

In reviewing the decision of Judge Reilly to issue the search warrant I must add this evidence in to determine whether the resulting body of information, if it were known by him, would have been sufficient to issue the warrant. It is my view, based on the totality of the information provided to Judge Reilly, and the information received at the voir dire , that the inclusion of this information would not, and should not, have made any difference to the decision of the Issuing Judge. [ 44 ] 8.e.

Constable MacIntyre’s preliminary inquiry evidence, admitted by consent in the voir dire , is that he has no recollection of whether he smelled alcohol on Mr. Taylor or that Mr. Taylor noted indications of intoxication. He has no recollection one way or the other. The Information at paragraph 8.e is that he indicated that alcohol was a contributing factor. [ 45 ] There has been no cross-examination of Constable MacGillivray as to what in fact he was told by Constable MacIntyre.

I therefore conclude that Constable MacIntyre made the representation to Constable MacGillivray, although it is impossible to determine the basis upon which he made that representation, as he has no present recollection of indicia of intoxication. Nevertheless, there has been no effort to mislead the Court and no fraud involved in the swearing of this paragraph in the ITO. Even absent this assertion the Issuing Judge could reasonably have issued the warrant. [ 46 ] 11. Given what Constable MacGillivray observed of the Accused, I consider that paragraph 11 was an appropriate representation to the Court.

Further, I consider that Constable MacGillivray has been frank to note that the behaviour of Taylor was consistent with having been involved in a serious collision and causing serious injury to a family member. I do not consider that Constable MacGillivray has improperly failed to disclose all matters of importance to the issuing judge. [ 47 ] 12. It is clear that Constable MacGillivray formed the opinion that Taylor’s ability to operate a motor vehicle was impaired by alcohol. He informed Taylor that he was arresting him for that reason. The statement in paragraph 12 is entirely appropriate. [ 48 ] 16.

Constable MacGillivray acknowledged that he had not provided the Accused with the right to speak to counsel. There has been nothing misleading provided to the Issuing Judge.

[ 49 ] 19. This is immaterial to the review of the decision of the Issuing Judge. [ 50 ] 20. There is no evidence that the evidence of Jared Wallace was available to Constable MacGillivray at the time of drafting the ITO. There has been no effort to mislead or withhold relevant information from the issuing judge. [ 51 ] 21.a-e. Taylor made these comments voluntarily. Evidence voluntarily given by an accused person without any prompting or effort on the part of the police may be admitted into evidence. It was appropriate for Constable MacGillivray to put that evidence before the Issuing Judge. [ 52 ] 22.f.

Constable MacNamara should not have requested information from the Accused to confirm he was the driver of the accident vehicle after the Accused had been charged and his rights had been read to him. However, there is ample other evidence placed properly before the issuing judge that the Accused was driving the vehicle. In fact the evidence at the voir dire establishes that to be the case. [ 53 ] 25. I fail to see the distinction being made by defence. In any event, I do not see it as being material to the issuance of the search warrant. [ 54 ] 36.e.

This paragraph indicates the conclusion that the vehicle was travelling in excess of the speed limit. While it fails to note that the vehicle was travelling too fast for the road conditions, I consider that it is a sufficient disclosure to the Issuing Judge. [ 55 ] Accordingly, and in

summary, I am satisfied that the content of the Information sworn to by Constable MacGillivray was neither misleading nor fraudulent. While certain additional information might have been of assistance, some of that information would not have been available to Constable MacGillivray at the time. Having heard the evidence of the witnesses at the voir dire herein, I conclude that the evidence provided to the issuing judge, and the evidence received at this voir dire was sufficient to issue the warrant. I find that there has been no improper conduct of Constable MacGillivray in the preparation of the ITO.

Heard on the 4 th to 8 th day of April, 2011. Dated at the City of Calgary, Alberta this 14 th day of September, 2011. R.J. Hall J.C.Q.B.A. Appearances: Ron Simenik for the Crown

Patrick c. Fagan, Q.C. for the Accused