r v. Steven KOWALYK, 2017 QCCQ 175

R. c. Kowalyk 2017 QCCQ 175 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-099692-136 DATE: January 26, 2017 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Steven KOWALYK Accused RULING ON A MOTION TO EXCLUDE EVIDENCE PURSUANT TO

SECTION 8 AND PARAGRAPH 24(2) OF THE CHARTER [ 1 ] The accused stands charged with counts of driving while impaired and driving while the concentration of alcohol in his blood exceeded the legal limit. The charges were laid following an accident that occurred on Highway 20 in the evening of August 11, 2013. The police arrived at the scene shortly after 10 p.m. and observed the accused lying in the ditch under his motorcycle. He was severely injured and unconscious. [ 2 ] The accused was brought to the hospital by ambulance and taken to the trauma department.

The medical team informed the police that they feared for the life of the accused. The accused remained unconscious while he was treated by the medical team. Although his medical condition improved as the hours went by, it was impossible for the police to meet the conditions to obtain a warrant for blood samples pursuant to s. 256 of the Criminal Code within the prescribed delay. [ 3 ] On August 13, 2013, the police sought a production order pursuant to s. 487.012 of the Criminal Code requiring the Montreal General Hospital to produce the medical file of the accused.

The police applied to a justice of the peace by filing a written and sworn Information to Obtain (ITO) that described the reasonable grounds justifying such an order. The order was issued on that same date by justice of the peace Johanne White and the medical file was produced to the police in due course. [ 4 ] The prosecution now intends to use the medical file at trial. The accused submits that it was obtained in violation of his s. 8 Charter right and should be excluded pursuant to para. 24(2) of the Charter .

The accused pleads that the grounds submitted to the justice of the peace were insufficient and that the order should not have been issued. [ 5 ] In response to this argument, the Crown submits that the grounds were sufficient, that no Charter violation has been established and that, in any case, the medical file should not be excluded in view of the relevant case-law. [ 6 ] For the following reasons, the motion to exclude must be dismissed. [ 7 ] At the time of the events, the relevant parts of s. 487.012 of the Criminal Code held that: 487.012

(1) A justice or judge may order a person , other than a person under investigation for an offence referred to in paragraph (3)(a), (

a) to produce documents , or copies of them certified by affidavit to be true copies, or to produce data; or (

b) to prepare a document based on documents or data already in existence and produce it.

(2) The order shall require the documents or data to be produced within the time, at the place and in the form specified and given (

a) to a peace officer named in the order ; or

(

b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law andwhose duties include the enforcement of this or any other Act of Parliament.

(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oathin writing, that there are reasonable grounds to believe that (

a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; (

b) the documents or data will afford evidence respecting the commission of the offence; and (

c) the person who is subject to the order has possession or control of the documents or data. (Emphasis added) [8] The statutory standard governing the issuance of production orders does not require proof on the balance of probabilities orproof beyond a reasonable doubt.

The applicable threshold was defined by Parliament with plain and simple words: the authorizingjudge must be satisfied that there are reasonable grounds to believe: ➢ That an offence has been or is suspected to have been committed; ➢ That the documents sought will afford evidence respecting the commission of the offence; and ➢ That the person who is subject to the order has possession or control of the documents in question. [9] In the case of R. v. Sadikov[1], the Court of Appeal for Ontario discussed the meaning of this threshold in the context of asearch warrant.

At paragraphs 81 and 82, the Court held : [81] The statutory standard – “reasonable grounds to believe” – does not require proof on the balance of probabilities, much less proofbeyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 167; and R. v. Law, 2002 BCCA 594 , 171 C.C.C. (3d) 219, at para. 7. The ITOmust establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of theproposed search: Hunter, at p. 168.

If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosedin the ITO, the warrant could be issued: R. v. Jacobson (2006), (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para.22. [82] The authorizing justice makes his or her decision about whether to issue the warrant from the evidence included in the ITO as awhole, approaching the assessment on a common sense, practical, non-technical basis. The justice, like the trier of fact at a trial, is alsoentitled to draw reasonable inferences from the contents of the ITO: R. v. Vu, 2013 SCC 60, at para. 16; R. v.

Shiers, 2003 NSCA138 , 219 N.S.R. (2d) 196, at para. 13; and Wilson, at para. 52. [10] Although these comments were made in the context of a search warrant, these principles equally apply to the issuance of aproduction order. [11] In the case at bar, the defense did not raise any error, mistake or deficiency in the ITO. There was no claim of bad faith,fraud or intent to mislead. And there was no motion seeking cross-examination of the affiant. The only argument raised by the defenseis that the ITO was insufficient on its face. [12] Given this submission, the Court has carefully reviewed the ITO.

The first part describes the scene of the accident in thefollowing terms: Accident survenu le 2013-08-11 aux environs de 22:03 alors que M. Kowalyk circulait seul en moto sur l’autoroute 20 Est, un peu avantla sortie St-Charles (km 44,6 exactement). À notre arrivée sur les lieux, je constate que M. Kowalyk est allongé au sol sous sa moto, uncitoyen et un membre du ministère des transports du Québec soutenant la moto afin de permettre au suspect de respirer.

À mon approchede ce dernier, il m'est facile de rapidement constater que ce dernier semble assez gravement blessé, présente des coupures au visage,saignements provenant de la bouche, contusions à plusieurs endroits et une respiration très bruyante et difficile. Il semble à ce momentinconscient.

Le personnel du service d'incendie de Montréal ce sont rapidement occupé de prodiguer les premiers soins dans l'attente desambulanciers. [13] The second part describes the smell of alcohol that emanated from the accused along with specific details concerning theunexplained nature of the accident: En m’approchant du suspect, je peux constater une odeur éthylique, odeur qui est confirmée également par des pompiers présents sur lascène. Mon observation de la scène à ce moment ne me permet pas de constater aucune trace de freinage ni aucun signe de collision entrela moto et un éventuel véhicule.

Il me semble de toute évidence que la moto circulait seule sur l'autoroute 20 Est et que le conducteur seserait graduellement dirigé vers l'accotement de droite, pour ensuite perdre le contrôle de sa moto et se retrouver dans le fond du fossetenviron deux mètres plus bas. [14] In the following part, the affiant states that in light of those circumstances, he has reasonable grounds to believe that theaccused was driving while impaired: L'absence de motif apparent d'accident ainsi que l’odeur d’alcool du suspect me donnent à ce moment des motifs de croire que ce dernierconduisait avec les facultés affaiblies par l'alcool, toutefois son état de conscience ne me permet pas de procéder à son arrestation. [15] And later in the ITO, the affiant gives details pertaining to observations made during the transfer to the hospital: Dans l’ambulance, il m’est à nouveau possible de constater l’odeur d’alcool ainsi que constater ses yeux vitreux alors que l’ambulancière

vérifie ses yeux. Le suspect présente toujours des saignements principalement au niveau de la bouche et éprouve beaucoup de difficultéà respirer. [16] In view of all the information mentioned in the ITO, the justice of the peace issued the production order. It must now bedetermined whether this decision should be reviewed. [17] In the case of R. v.

Rhyason[2], the Supreme Court of Canada stated the following as to whether an unexplained accidentalong with alcohol consumption could generate reasonable and probable grounds: 18 […] The trial judge found the accident to be significant, noting that “[i]f Constable Stevens had merely detected signs of alcoholconsumption in the absence of an accident, there may have been a valid argument to the effect that evidence of alcohol consumption doesnot itself constitute evidence of impairment” (para. 25 M.V.R.).

As the trial judge observed, there is abundant jurisprudence confirmingthat the circumstances of an accident can be taken into account, along with other evidence, in determining whether an officer hadreasonable and probable grounds to arrest an individual for impaired driving. (See, for example, R. v. Eliuk (2002), 299 A.R. 364, 2002ABCA 85 , at para. 12; R. v. Pedersen (2004), 193 B.C.A.C. 206, 2004 BCCA 64 , at para. 30; R. v. Turner (2004), 1M.V.R. (5th) 191 (Ont. C.J.), at para. 8; and R. v.

Gairdner (1999), 40 M.V.R. (3d) 133 (B.C.S.C.), at para. 15.) 19 This is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds or,conversely, that it never does. What is important is that determining whether there are reasonable and probable grounds is a fact-basedexercise dependent upon the circumstances of the case.

In this case, the presence of an unexplained accident was one factor that the trialjudge appropriately took into consideration when determining that those grounds existed. 20 At numerous times in his reasons, the trial judge signaled that he was relying on more than just evidence of consumption as a basisfor his finding that the arresting officer had reasonable and probable grounds to demand a breath sample. Read as a whole, those reasonsreflect the application of the proper test. (Emphasis added) [18] It is well established that the task of a reviewing judge is a narrow and limited one.

In Sadikov, supra, at paragraphs 84 to 89,the Court of Appeal summarized the applicable principles in the following manner : [84] The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge doesnot substitute his or her view for that of the issuing judge: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851 , 97 O.R. (3d)721, at para. 20, leave to appeal to S.C.C. refused, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, atpara. 40.

The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probablegrounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and placeof search: Morelli, at para. 40.

Said in another way, the test is whether there was reliable evidence that might reasonably be believed onthe basis of which the warrant could – not would – have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452. [85] The reviewing court does not undertake its review solely on the basis of the ITO that was before the issuing judge. The reviewingcourt must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adducedon the voir dire to correct minor errors in the ITO.

Amplification evidence corrects good faith errors of the police in preparing the ITO,but does not extend to deliberate attempts to mislead the authorizing judge: Morelli, at para. 41; and Araujo, at para. 58. Evidence reliedupon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later: Morelli, at para. 43. […] [87] Warrant review requires a contextual analysis.

Inaccuracies in the ITO, on their own, are not a sufficient basis on which to grounda finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant: Araujo, at para. 54. Theexistence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nordispositive of, the review: Garofoli, at p. 1452; and Ebanks, at para. 20. [88] It is no part of the reviewing judge’s mandate to determine whether she would issue the warrant on the basis of the amplifiedrecord.

Nor is it the reviewing judge’s role to draw inferences, or to prefer one inference over another. The inquiry begins and ends withan assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which thewarrant could have issued: Morelli, at para. 40. [19] In the case at bar, it is clear that the authorizing judge relied on more than mere suspicions to issue the production order.

Given all the circumstances described in the ITO, it was certainly opened to the authorizing judge to conclude that reasonable andprobable grounds arose from the cumulative effect of the unexplained specific circumstances of the near fatal accident in which theaccused was involved, coupled with the signs of alcohol consumption and the observations made during the transfer to the hospital. [20] It is trite to say that each individual case is unique and must be analyzed in light of its own particular circumstances. Thefacts of the case at bar can be distinguished from the case-law relied upon by the defense[3].

In light of the narrow role of the reviewingjudge, and considering the comments of the Supreme Court in Rhyason in conjunction with the circumstances of the present case, theCourt concludes that the ITO contained reliable evidence on the basis of which the production order could be issued. [21] For all those reasons, the motion to exclude is dismissed. __________________________________ YVAN POULIN, J.C.Q.

Me Pierre Joyal For the prosecution Me Alexandre Gautier For the accused Date of hearing: December 20, 2016