Her Majesty the Queen - v. -, 2018 SKPC 12

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2018 SKPC 012 Date: March 02, 2018 Information: #Y297106 Location: Kindersley ____________________________________________________________________________ Between: Her Majesty the Queen - and - D.P. Appearing: D. Stahl and T. O ’Hara For the Crown M. Brayford, QC and B.

Pfefferle For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________

SECTION 8 CHARTER RULING - GAROFOLI APPLICATION R.D. JACKSON , J _____________________________________________________________________________

I INTRODUCTION [ 1 ] The accused stands charged as a youth in a nine count Information alleging that he caused the death of J.L. and caused bodily harm to D.W. and C.M., by the operation of his motor vehicle while impaired by alcohol, over .08 and in a manner dangerous to the public, respectively. [ 2 ] The defence brings the within application alleging a breach of s. 8 of the Charter challenging the sufficiency and quality of the Informations to Obtain Search Warrant and Production Orders, commonly referred to as a Garofoli application, [1] and seeks to exclude all evidence flowing therefrom pursuant to s. 24(2) of the Charter .

II BACKGROUND [ 3 ] The charges arise as a result of a tragic two vehicle collision in the early morning hours of November 22, 2015 at the intersection of Highway #21 and Township Road #294, two miles north of Kindersley. The accused was the operator and sole occupant of his vehicle (the “Dodge”), which travelled westbound across Highway #21 where it collided with a southbound vehicle (the “Ford”), killing the operator and injuring the two passengers. [ 4 ] Several first responders attended on scene including RCMP, paramedics and Kindersley Fire Department.

The paramedics as well as Captain David Burke of the Fire Department and Constable Fillion of the RCMP, had direct interaction with the accused prior to his removal by ambulance. [ 5 ] RCMP personnel included Corporal Durocher, Constable Fillion and Constable Suzanne Doucette, the latter being the lead investigator who spent approximately 5½ hours at the scene gathering information and evidence. [ 6 ] RCMP Forensic Collision Reconstructionist, Corporal Doug Green, also attended and subsequently prepared a Collision Reconstruction

Summary Report, marked Exhibit P-2 in this application. The salient portions of this report with respect to the within application are as follows: Speed Analysis Results - Speed calculations were conducted using the 360° momentum formula. - The impact speed of the Ford was a minimum of 107 km/h. - The impact speed of the Dodge was a minimum of 42 km/h. - Neither the Dodge or Ford had any pre-impact braking. - Speed results from vehicles’ Event Data Recorders (EDR’

s) were not available for the vehicles as they were not supported by the current version of the Crash Data Retrieval (CDR) software. Environmental Considerations

- View obstructions may have been a factor as there was large pile of wooden oil field platforms located on the northeast corner of the intersection. These may have prevented the drivers from seeing each other. - Road conditions were not ( sic ) factor as both roads were dry and in good condition for driving. - Weather conditions were not a factor as it was clear an ( sic ) there was no precipitation falling. Other Contributing Causes or Factors - The mechanical condition of the vehicles were not a factor.

There was no indication at the scene prior to the AOI to indicate that either vehicle was experiencing any type of mechanical failure. - Road signage may have been a factor as there were no yield or stop signs in place at the intersection. - The cause of the collision was the driver of the Dodge failing to yield to the Ford before entering Highway 21. [ 7 ] The accused, seriously injured in the collision, was transported by air ambulance to Royal University Hospital, Saskatoon, where, in the process of his treatment, blood samples were taken and preserved by the hospital. [ 8 ] On February 10, 2016, the investigating officer, Constable Suzanne Doucette, provided sworn evidence to a Justice of the Peace to obtain a search warrant and production order to procure the blood samples and hospital records held by Royal University Hospital in Saskatoon [2] .

III SCOPE OF REVIEW [ 9 ] The function of a judicial review for this type of application is limited. It is not a hearing de novo . Rather, it is an assessment of the record upon which the authorization was granted, subject to strict parameters. In Garofoli , Sopinka J stated it thus: The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [3] [ 10 ] In a nutshell, after proper consideration, the question is whether the authorization could have issued, not whether the reviewing court would have issued in such circumstances.

Further, even if inaccuracies, deficiencies or even fraud are made out, there may still remain sufficient information to meet the statutory thresholds. [4] [ 11 ] What then is the Court to look for in the supporting affidavit? In R v Araujo [5] , the Supreme Court stated: . . . the legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts . . . All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization.

Ideally, an affidavit should be not only full and frank but also clear and concise . It need not include every minute detail of the police investigation over a number of months and even of years. [ 12 ] The reviewing court must also be careful not to parse words or paragraphs in isolation but rather to look to the affidavit as a

whole in context to assess whether it is adequate. [6] IV SUB-FACIAL ATTACK - APPLICATION TO CROSS-EXAMINE THE AFFIANT, CONSTABLE SUZANNE DOUCETTE [ 13 ] At the outset, defence argued that cross-examination of the affiant ought to be permitted. The Crown was vehemently opposed, emphasizing that a sub-facial attack on the validity of the ITO was only to be granted in exceptional circumstances. [ 14 ] Cross-examination of an affiant in a Garofoli application is not a matter of right.

Concerns over the prolixity of the proceedings, protection of confidential informants (not in issue here) and relevance all limit the necessity and scope of any proposed cross-examination. [7] Accordingly, leave must be granted to permit cross-examination to take place at all. [ 15 ] In the originating Charter notice, the defence raised several concerns regarding the ITOs of Constable Doucette, reiterated in oral argument. These involved misleading information and omissions, mischaracterization of evidence as well as wilful inclusion of false evidence.

It is the defence position that enough issues were raised to warrant a focused interrogatory of Constable Doucette as to why and how various conclusions were reached and why highly relevant information was excluded or misapprehended. The defence maintains that after appropriate review of these issues there would be no judicial basis upon which the warrant could have issued. [ 16 ] Following argument, the Court exercised its discretion to permit cross-examination of Constable Doucette. In coming to this conclusion, the Court found the words of Mr. Justice C.

McKinnon in R v Alizadeh [8] to be particularly apt: What is crucial to note is that the duty of full, frank, and fair disclosure is intended to ensure that the issuing justice is presented with a clear and concise

summary of the evidence. In virtually every case, it will be possible for counsel to argue that the affiant ought to have included more details or more information. Ultimately, in assessing an affiant ’s candour, the court must evaluate any argument that the affiant ought to have included more detail in the affidavit by asking whether such an omission was material. Stated otherwise, would the justice have had reason to be concerned about issuing the warrant had he or she been made aware of these other facts?

Alternatively, would the accumulation of individual errors or omissions have left the issuing justice with a skewed or inaccurate understanding of the information being placed before the court?

If either of these questions compels an affirmative answer then there would be grounds upon which a court could find that cross-examination would be of assistance in determining whether the affiant complied with the duty to make full, fair, and frank disclosure for the purposes of a Garofoli hearing . [emphasis added] [ 17 ] Further, in R v Nguyen [9] , our Court of Queen’s Bench articulated that cross-examination should only be permitted where there was reasonable likelihood that such was necessary to enable full answer and defence or disclose relevant and material evidence of a probative value that may discredit the existence of reasonable and probable grounds. [ 18 ] In Lising it was also noted that cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. [10] V ITO OF CONSTABLE DOUCETTE [ 19 ] The following excerpts from the ITO of Constable Doucette sworn February 10, 2016 are relevant to the within application: II.

OVERVIEW OF INVESTIGATION

2.2 Based on the information from the in v estigation: P. had been at a party where he was observed with liquor in his hand , there was open liquor in P. ' s vehicle , there was an odour of liquor on P. ' s breath , P.'s eyes were bloodshot and when asked he advised that he did not know how much he had had to drink . I believe that P. was driving while impaired and this is a significant cause of the collision. III. GROUNDS 3.1 On November 22 , 2015 at 0448 a.m. I was dispatched to a fatal motor vehicle collision. While walking around the scene of the collision I observed the following: . . .

e) The weather was clear.

f) The road surface was dry and clear of any debris.

g) There was a lack of skid marks from P. ' s vehicle.

h) There was nothing obstructing the view of traffic travelling South on Highway 21 from the 2 mile grid.

i) There was an open box of beer and 2 unopened beers lying on the ground behind the Dodge Ram. 3.2 On Sunday November 22, 2015 Cst. Conroy Fillion (Cst. Fillion) an RCMP member with the Kerrobert RCMP detachment , was also at the fatal motor vehicle collision . While at the collision scene Cst. Fillion told me the following information:

a) There was an open can of beer on the front driver's side floor of the Dodge Ram vehicle.

b) There was a strong odour of liquor inside the Dodge Ram.

c) A Check on the plate confirmed that the Dodge Ram was registered to D.P. ' s father and the Ford F350 was registered to L.'s. 3.3 On Sunday November 22 , 2015 Cpl. Marc Durocher (Cpl. Durocher) an RCMP member with the Kerrobert RCMP , was also at the fatal motor collision. While at the collision scene Cpl. Durocher told me he saw a box of beer and 2 beer cans laying behind the Dodge Ram. 3.5 On Sunday November 22 , 2015 at 10:20 a.m. Cst. Paul Jones (Cst. Jones) an RCMP member with the Saskatoon General Investigation

Section went to the Royal University Hospital to speak with P. about the fatal motor vehicle collision. I have since spoken to Cst. Jones and told me the following information:

a) He saw that P. had red bloodshot eyes.

b) He asked P. to breath ( sic ) on him and he could smell an odour of stale liquor on his breath.

c) Dr. Mark Taylor (Dr. Taylor) told him that he felt P. was drunk however he did not give any specific observations.

d) Dr. Taylor also told him that blood had been taken from P. by Nurse Marissa Duncan under his orders and sent to the Royal University Hospital lab.

e) Under warning P. first told him that he couldn ' t remember how much he had had to drink and then D.P. told him that he couldn ' t remember if he had been drinking at all. [ " under warning " refers to the fact that Cst. Jones read him the police warning verbatim.]

f) On November 23 , 2015 he called the chemistry lab at the Royal University Hospital and they confirmed that they had the blood samples obtained from P. and were holding them for police. 3 . 6 On Monday November 23 , 2015 at 9 : 03 p.m. I took a statement from R. S. (S.) a high school student at whose residence a party was held on Saturday November 21, 2015. She stated the following:

a) She saw P. drinking.

b) She saw P. was with a group of his friends.

c) She went up to the group and asked which one was the sober driver .

d) She was told it was someone she had never met before.

e) She was told , the sober driver was someone with them and they said " This is our sober driver , he ' s not drinking ."

f) She told the driver it was nice to meet him and then went and spoke with some other people.

g) When the group went to leave , she saw they all left together.

h) She was under the impression that P. was getting in the vehicle with that person.

i) She did not see how much P. had had to drink.

j) She was pretty sure he was drinking some sort of liquor because it was in a cup and there was no sort of pre mixed drinks.

k) She thought P. left around 2:00 a.m. or 2:30 a.m. it may possibly have been later than that. 3.7 On Monday November 23, 2015 at 8:18 p.m. I spoke with J. K. a high school student that had been at a party at the S. residence on the night of Saturday November 21, 2015. She told me the following:

a) She was at the party at the S. residence.

b) She observed P. at the party with a drink in his hand.

c) In the early morning of Sunday November 22, 2015 she offered a group of guys, of whom P. was a part, a ride home. The guys answered "Ok sounds good, we' re all fine." 3.8 On Monday November 23, 2015 at 10:16 p.m. I took a statement from J. W. (W.), a high school student who had been at a party at the S. residence on the night of Saturday November 21, 2015. W. is a friend of P.' s. W. stated the following:

a) He saw P. was around and had a couple beers that he was aware of.

b) He saw that P. was drinking Pilsner' s.

c) He saw that P. drove home.

d) He does not feel any one should be drinking and driving no matter how much they have had.

e) He thought P. was in better shape than he has seen some people.

f) As far as he knows P. dropped off their friend M. and then headed home. 3.13 On January 18, 2015 [ sic ]at 2:59 p.m. I spoke with Gramlich a Primary Care Paramedic with the Heartland Health Region. Gramlich

had been treating L. on the day of the collision. Gramlich told me that she believed that L.' s death was caused by traumatic injuries due to the impact of the other vehicle. 3.14 On February 9, 2015 ( sic ) I spoke with Connie Neuberger a Medical Laboratory Supervisor at the Royal University Hospital in Saskatoon and she told me that the samples were still being held by the lab. IV . CONCLUSION 4.1 Observations made by police officers on November 22, 2015 at the scene of the motor vehicle collision near Kindersley, SK were signs that P. drove his Dodge Ram while impaired and caused an accident with L.

In the accident L. was killed, M. and W. were injured. Witnesses place P. at a party drinking alcohol prior to this accident. 4.2 P. was also injured during this motor vehicle collision and was transported to the Royal University Hospital in Saskatoon where he was treated for his injuries. During his treatment, blood was taken. Based on this information the police request a search warrant to go to the Royal University Hospital to obtain these blood samples.

These items will afford evidence that P. was impaired during the time of the motor vehicle collision which caused injuries to M. and W. as well as the death of L. VI CROSS-EXAMINATION OF CONSTABLE DOUCETTE [ 20 ] Constable Doucette was cross-examined extensively by defence counsel concerning the contents of the ITO. Rather than attempting to paraphrase, the Court has reviewed the transcript and determines the following portions to be germane to the within application: T 46, L 29 - 35 Q And so on the morning that you were at the scene, how long were you at the scene for? Just I'm not holding you to a magic number.

Just in general terms. A I was at the scene from approximately 10 after 5, I believe, to approximately 10:30 in the morning. Q Okay. The -- during that time -- Corporal Green arrived during that time? A Yes, he did. T47, L 9 - 41, T48, L1 - 3; 22 - 41 Q Okay. Now, D. P., was this someone that was known to you when you -- when you saw him at the scene? A No, I did not see him at the scene. Q You didn ’ t -- didn ’ t even see him at the scene? A I did not.

Q So he was present at the scene when you were there, but you didn ’ t see him. A Yes. Q Okay. And when -- where did you perceive that he was that he wasn't within your view? Or where did you think he was? A He was in an ambulance. Q Okay. And, now, when you first heard of the, if I can call it the overview of the accident when you went there, one of the things that you had heard is that were two people were injured and two people were killed; is that correct? A Yes. Q Okay. And the two people that were injured were believed to be passengers in the southbound vehicle. A Yes.

Q And so that gave you the idea that obviously Mr. P.'s injuries were serious. A Yes. Q And that at least initially for someone to think he was dead, he must have been unconscious. A Yes. Q The -- now, when -- at some point in the file it became apparent that Mr. P. had been thrown from his vehicle, probably unrestrained, rendered unconscious, and was found by one of the gentleman that was actually an injured A Yes. . . . Q And so the -- the only offences that were being alleged at the time of the information to obtain are offences that involve impaired driving; is that correct? A Yes.

Q And so you were alive to the fact that you needed to give the justice of the peace information which might fairly reflect on whether or not D. P. was impaired. A Yes. Q Okay. And, now, in the overview of the investigation you have a paragraph that says as follows: (as read) Based on the information from the investigation, P. had been a party where he was served with liquor in his hand. There was open liquor in P.'s vehicle. There was an odour of liquor on P.'s breath. P.'s eyes were bloodshot. And when asked, he advised he did not know how much he had to drink.

T 51, L22 - 32; 37 - 41 Q Well, in that paragraph you end with, I believe that P. was driving while impaired and this is the significant cause of the collision. So you're aware that you have to meet the burden of putting forth credibly based probability that the person was impaired. A Yes. Q With the exception of the observations of drinking, which don't really help much on that, the only phrase that might reflect on whether he drank too much was the words, He advised that he did not know how much he had had to drink. Is that fair? A Yes. . . . Q Okay.

The -- when you look back at the information that you were aware of, there's two things that might cause memory lapse that are relevant to this case, I would say. Whether the person drank too much or whether they had a head injury. Would that be fair? A Yes. T52, L 10 - 41 Q MR. BRAYFORD: And the one thing that you tell the -- the justice in the application is that Mr. P. was injured. And you also indicate that he was taken by STARS Ambulance, which would suggest more than a trivial injury; agreed? A Yes.

Q But without telling the justice about a head injury, we don ’ t know whether or not the reason he was airlifted was because he had a broken back, broken leg. There just wasn't any kind of a hint as to what the nature of his injuries were, other than they were probably serious. A Yes. Q You would agree that it would be -- if you're asking the justice to draw an inference that someone's memory loss was due to alcohol, a fairness would dictate that if there was any other cause that you're aware of, that you would want to give the justice as much information about that other cause as possible; correct? A Yes.

Q For whatever reason you simply didn ’ t tell the justice of the peace very much about his injuries, did you? A At the time I had no knowledge of his injuries. Q Well, you knew -- you knew this much, you knew that they were considered life threatening at first. A Yes. Q You knew that he had been rendered unconscious. A Yes.

Q That told you that he had a head injury of some kind. A Yes. T 53, L 2 - 10; 33 - 41 Q And you believe that head injuries could be a factor in whether or not someone had the ability to -- to remember. A Yes. Q None of those things were shared with the justice of the peace. A No. Q You're agreeing with me? A Yes . . . Q MR. BRAYFORD: So the -- maybe flesh out that -- that answer and your position is that the reason he'd been unconscious was obviously some sort of a head injury that he received -- A Yes. Q -- correct? And that a head injury is potentially a factor in someone not being able to remember. A Yes.

T 54, L 1 - 9; 20 - 40 Q And so as to the gravity of the head injury, beyond which you can be inferred from the fact that he was rendered unconscious and thought possibly dead, you didn ’ t have any health provider records at that point to look at; is that fair? A Yes. Q Okay. But with respect to, if I can call it the knowledge that you did have, as limited as -- as it was to your attendance at the scene, that portion wasn't shared with the justice of the peace. A No. . . . Q -- of severe injury.

But the point that I -- I guess I think is quite critical is severe injury could be a broken back or something that doesn't affect your memory.

A Yes. Q Rather in his case, he had an injury that you were aware of, might impact on his ability to remember. A Yes. Q And you didn ’ t share that information with the justice. A No. Q Now, the other thing that you -- you would be aware of, that by the point at which he was being questioned, he'd had medical treatment between the STARS people and RUH staff for approximately three hours, at least, if not a little bit longer. A Yes. Q And it would be your inference that if somebody had such a severe injury, that they probably would have been given pain medication. A Yes.

T 55, L 12 - 41 Q And I -- I'm inferring this, that -- that if someone should be able to see another motorist and they don ’ t take steps to avoid that motorist, it might suggest they're impaired. A Yes. Q The belief that you had was that the three gentlemen that were travelling southbound were on their way to work; is that correct? A Yes. Q And you drew the inference then, I suggest, and -- and it was later corroborated that these men were sober. A Yes. Q And you were also aware that that vehicle didn ’ t take any apparent evasive action either. A Yes.

Q So the -- the two vehicles would have had the same opportunity, both the, if I can call it the sober driver and the driver that apparently had -- had some alcohol to drink, they both had the same opportunity to take evasive action, and neither one was able to take evasive action. A Yes. Q That wasn't shared with the justice of the peace, was it? A No. Q Would you not agree that the fact that you believed that you had a sober driver that was -- had the very same opportunity and

was unable to take evasive action would have been highly relevant? A Yes. T56, L 5 - 31 Q Now, you had an opportunity to observe the intersection for several hours that morning. And I'd just like to go over what you observed. First of all, perhaps the most -- the -- put it this way, I would suggest to you that the thing that catches everyone's attention about this file is the lack of a stop sign that was missing from the -- the road that Mr. P. was travelling, or a yield sign, as that road intersected with the highway. A Yes. Q And that was, kind of, shocking; correct?

A I believe it's common in -- in (INDISCERNIBLE) and Kindersley area. Q Is that -- that's -- that they're missing? The -- we're agreed that whether there's a stop sign or a yield sign, that the Traffic Safety Act requires the motorist entering or crossing the highway to yield to the motorist on the highway. We're agreed with that? A Yes. Q And -- but with respect to giving the motorist a warning that they're -- they're coming to a highway, obviously the most important thing that would give a motorist, alert a motorist they're coming to a highway is a yield sign or a stop sign; fair? A Yes.

Q Likewise, some particular intersections have overhead -- a overhead light of some kind, like just a white light. They're lit in some way. This one wasn't, was it? A No, it was not. T57, L 12 - 40 Q You later learned that he'd taken this, and what -- what for him would be an unusual route, that he'd -- he'd -- which -- dropping someone off prior to that. A Yes. Q Now, just on that point, the individual that he dropped off was M. B., I understand; is that correct? A Yes. Q And you eventually interviewed M. B. A Yes. Q When was the first time that you interviewed M. B.? A During the spring of 2016.

Q Okay. And so at the point at which you swore the first two ITOs, you hadn't interviewed him at all; is that right? A No, I had not. Q By the time you swore the third ITO in September of 2016 you had interviewed him by then. A Yes. Q His information was of considerable significance because he was the last person to see D. P. before the accident. A Yes. Q And -- and his -- he didn ’ t notice anything untoward about D. P.; is that -- is that fair? A Yes. T 58, L 1 - 40 Q And so he -- and I -- and I -- I want to be very clear.

I think you were very fair about paraphrasing the other young people that were at the party. That -- that you didn ’ t overstate or anything that they -- all of them appeared to believe that D. P. had probably been drinking alcohol based on what they saw. A Yes. Q But none of them, really, were in a position to comment upon his ability to drink -- excuse me, to drive. But all took the view that if you drank any alcohol, you shouldn't drive at all. A Yes. Q Or I shouldn ’ t say they all, some of them took that view. A Yes. Q M.

B. was -- was a bit of a unique individual in the sense that he actually had a chance to see the driving. A Yes. Q And -- and didn't report anything to you as a concern. A No. Q You didn ’ t share that in the third ITO, did you? A I did not. Q Any particular reason? A No.

Q I -- I take it oversight or -- A Yes. Q Okay. You would agree that, now, that wasn't known to you for the first two. But you would agree that it would suggest that he wasn't impaired, his -- his evidence, M. B.'s evidence. That you did -- you weren't aware of it in ( sic ) February 10th. A Yes. Q Now, this intersection, the fact that it was unlit and didn ’ t have a stop or a yield sign that might also or alternatively warn a motorist that -- that they were about to cross a highway, that wasn't included in the ITO either, was it? A No, it was not.

T59, L 1 - 41; T 60, L 1 - 19 Q That seems to be, as we're agreed, a pretty important factual characteristic about this intersection. Why wasn't it included? A At the time I did not believe it was important, as that is a common -- common occurrence in the Kindersley area. Q That -- you would agree that it's an exceedingly important piece of information about whether or not someone would notice that they're coming to a highway? A Yes. Q Okay. And you were trying to put forward the suggestion, I -- I suggest, that the fact that the person didn ’ t yield at the highway perhaps suggested impairment; correct? A Yes.

Q And so this is something that was very relevant as to whether or not they would have yielded or not. Yes? A Yes. Q Now, likewise something that's equally perhaps as important is whether there was any way the two motorists could have seen each other, so that irrespective of any sign that they might avoid each other or that my client might yield to the other motorist, would be their line of sight. That would be a really important thing. A Yes. Q Now, this intersection had a large pile of swamp lands or oilfield platforms, I think is how Corporal Green refers to them. A Yes.

Q And if one was travelling west on the road that Mr. P. was travelling, the southbound vehicle would be coming from the north towards him from his right; correct? A Yes.

Q And if we were to draw an angle from Mr. P.'s vehicle towards the southbound vehicle, you could -- a 45 degree angle between the two vehicles would be -- that -- that line would be in a northwest direction, obviously. A Yes. Q So in this northwest direction, this triangle that Mr. P. is looking, and the – the southbound motorists are looking in a, if I can call it in a southeasterly direction, the thing that's between the two of them, the two vehicles, is this pile of swamp mass ( sic ). A Yes. Q So at the intersection, the intersection is, essentially, north, south, east, west; correct? A Yes.

Q The highway's heading north and south, the -- the grid road is heading east and west. A Yes. Q The -- the quadrant where the swamp mounts are in is the northeast quadrant. A Yes. Q Now, you received Corporal Green's report that he asked you to place in the file approximately three weeks before you swore the ITOs on February 10 th ; correct? A Yes. T 64, L 18 - 41 T 65, L 1- 35 Q MR.

BRAYFORD: Now, so at -- at the bottom of page 2 under environmental considerations, the -- Corporal Green states, (as read) View obstructions may have been a factor as there was a large pile of wooden oilfield platforms located on the northeast corner of the intersection. So this was his apparent opinion that -- that you received approximately three weeks before you -- before February the 10th; correct? A Yes. Q And you had seen those oilfield platforms when you were out there; correct? A Yes. Q And you do agree that that's where they are, that they're in the northeast sector. A Yes.

Q And that's the direction that the two motorists had to look, was, if I can call it through that triangle to see each other.

A Yes. Q And the picture that is on page -- the picture that is on page 7 best represents that. So looking up at the top picture on page 7, the -- the bottom of the picture, it says view obstruction to the right of the Dodge. Right above that writing you can see a -- a roadway; correct? A Yes. Q That roadway would be the roadway that D. P. was travelling upon. A Yes. Q The -- the Court's copy won't be in colour, but on your copy there's -- there's right, basically, in the middle of the picture there is a stack of platforms with, in your picture, that has a red and white sign on it. A Yes.

Q And that's the oilfield platforms you believe that are being referred to by the – by Corporal Green? A Yes. Q And right just about to go behind the oilfield platforms -- or -- well, if it was moving. I don't know if it's moving or not -- is a -- I ’ m assuming that's a police car probably. There's a -- this -- this car that's immediately at the top right-hand corner -- A Yes. Q -- of the oilfield platforms there's a white car, possibly a police car. A Yes. Q And so that would be the line of sight that the two motorists had of each other; correct? A Yes.

Q Additionally, there was one other obstruction at that scene; is that correct? A Not that I'm aware of. Q This was -- I just got this on Monday, but there is a picture. I won't have this copy and I'll share them with the Court. This picture is taken by Corporal Green that morning, as I understand it. A Yes. T 66, L 25 - 36 Q MR. BRAYFORD: And the -- I only wanted to orient everyone because right behind what -- what I said would be potentially Mr. P.'s vehicle at some point, there is a pile of material that was also at that intersection. A Yes.

Q Correct? A Yes. Q And so it too would have been, if I can call it within this critical triangle, this sightline between the two cars. A Yes. T 67, L32 - 40 Q So you would agree with me that the statement that you made in the information to obtain, That there was nothing obstructing the view of -- this is at paragraph H of paragraph 3.1 on page 3 of -- of the ITO. (as read) There was nothing obstructing the view of traffic travelling south on Highway 21 from the 2 mile grid. You would agree with me that's an incorrect statement? A Now looking at, yes. T 68, L 1 - 31 Q Okay.

And you -- you were aware of Corporal Green's report; you were in possession of it for three weeks. In view of -- of him saying that that's one of the environmental potentially causation issues, why didn ’ t you put it into your ITO? A I don ’ t know. I believe it was an oversight. Q Okay. E-2 had on -- on the next page of Doug Green's report under what are called, this is page 3, other contributing causes or factors. He identified road signage may have been factors. There's no yield or stop signs in place at the intersection. So you were aware that he drew that inference as well. A Yes.

Q The -- I note that in a preceding paragraph immediately above environmental considerations he commented upon the speed of the two vehicles, but he didn ’ t attribute anything as far as causation, particularly to the speed of either vehicle; is that correct? A Yes. Q So he identified that the -- at the point of impact, the minimum speed of the southbound Ford would have been 107 kilometres per hour, and at the impact the speed of the westbound Dodge was a minimum of 42 kilometres an hour. And that's basically all he said about speed. A Yes.

Q You're aware that the speed limits in those two locations would be 100 for the highway and 80 for the grid road? A Yes.

Q The -- the -- did you draw any inferences from the speed of the two vehicles that you thought was relevant to the cause of the accident? A No, I did not T 70, L 1 - 36 Q So you were aware that D. P. was a young person within the meaning of the Youth Criminal Justice Act . A Yes. Q And you were aware that -- you phoned at 7:09. You were aware that his parents were going to rush to the hospital. A Yes. Q And you were aware personally that the accident had happened prior to 5 AM, probably closer to 4:30, approximately? A Yes. Q How much of this did you share with Constable Jones or do you remember?

A I don ’ t remember. Q Okay. Now, the conversation that -- that you first had with Constable Jones, as I understand it, was just a couple of minutes after 9 AM. A I believe it was at 8:30. Q Oh, okay. And how long did that conversation go on for? A I don ’ t remember. Q Like, it was -- was it more than, like, one minute or two minutes? A Yes. Q Oh. Oh, so it was just -- okay. In that conversation he shared with you that one of the problems with seizing hospital samples is that because they're not being taken with the RCMP blood kit, with special swabs and so on, that the hospital would have used alcohol swabs.

He alerted to you -- you to that, you made a note of it; correct? A I don ’ t remember. Q Okay. If -- if I could get you to refer to page 80 in your notes, at the bottom of your notes. And there -- there's a note there that says 9:01, they use alcohol swabs which could compromise samples. Jones will go to RUH. A Yes. T 71, L 1 - 9

Q Okay. This isn't something that you disclosed in your ITO, is it? A No, it's not. Q That would be relevant as to -- as to whether or not the justice of the peace would think that evidence was potentially useful or not. A Yes. Q That was an oversight, I take it? A Yes. T72, L 19 - 39 Q Okay. Now, in your ITO you rely on -- and, quite frankly, I -- I think you did this very fairly, so don ’ t -- don ’ t get me wrong. You rely on a conversation with Constable Jones as to what he learned from Dr. Mark Taylor. And it appears at -- at paragraph 3.5, number C. And I -- on page 4, as I, kind of, added the page numbers.

And -- and I commend you, quite frankly, you didn ’ t overstate it. I thought you -- there was some, sort of, conclusatory type statement attributed to Dr. Taylor. It was, (as read) Dr. Taylor told him – I take it that to be Constable Jones. -- that he felt P. was drunk. However, he did not give any specific observations. A Yes. Q And you have the notes at this point and why Dr. Taylor felt that you -- you simply just -- that was simply a conclusatory statement. You just didn ’ t have any observations or conversation or anything; is that fair? A Yes.

T 73, L 1 - 31 Q And if you look at the notes of Constable Jones, there simply was nothing in there that -- that -- or, like, he had told you this, but even in his notes there's nothing in there. That -- like, that conversation isn't even in there. Like -- A Yes, it's not in there. Q So -- so I don ’ t question that Constable Jones verbally told you this. But it's not something that -- that he even made a note of; correct? A Yes.

Q And so to the extent that that is or is not the precise word or whether it's a paraphrasing or just how that information got from Dr. Taylor to Constable Jones to you, you simply don ’ t know. A I do not know. Q That -- now, in your conversation with Constable Jones, would it be a fair inference that because he didn ’ t tell you about complying with any of the provisions of the Youth Criminal Justice Act , but specifically

Section 146 about asking a young person whether they want to have their parents present for questioning and the various other, if I can call it protections that are in there, would it be a fair inference that because he mentioned that he gave the warning and he doesn ’ t -- didn't mention anything about the Youth Criminal Justice Act , that you would draw the inference that he didn ’ t comply with

Section 146? A Yes. Q Likewise, with respect to explaining the parameters of the Traffic Safety Act and the provisions surrounding Sections 253 and 254 about the compulsory nature of a Traffic Safety Act statement and the limited purposes for which it can be used, and that it's an offence if you don't comply, to the best of your inference, if I can call it, that the inference you would draw is that that wasn't discussed either with -- with D. P. by Constable Jones? A Yes. T 74, L 13 - 40, T 75, L 1 - 24; L 36 - 39, T76, L 1 - 41 Q MR. BRAYFORD: I forgot. Now, it's a good thing we didn ’ t take a break.

I -- I -- I've already forgotten whether I've asked you this question or not, so I'm going to ask. It may be a repetitive question. Sorry, Constable Doucette. In trying to judge whether or not someone should have been aware they were coming up to the highway, if it was a normal intersection for them to -- to be travelling through on their way home every night, that's something that would probably be relevant for the justice of the peace, even if there wasn't a stop sign there; would that be fair? A Yes.

Q And the converse in this case is this is an intersection that, to the best of your knowledge, would be an unlikely route for the young man to be travelling on. A Yes. Q And you didn ’ t put that in the ITO, did you? A I did not. Q That might have been helpful as to whether or not he should have known the highway was there; is that fair? A Yes. Q Now, with respect to the smell of alcoholic beverage, the -- this is dealt with at several spots in your ITO. In paragraph 2.2 you talk about the odour of liquor on P.'s breath without any adjectives. You just simply say the odour of liquor on P.'s breath.

The -- and then on paragraph -- or on page 3, on paragraph 3.2 you quote Constable Fillion as saying, There was a strong odour of liquor inside the Dodge Ram. And in the immediately preceding sentence, so at -- it's -- there was a preceding sentence that said, (as read) There was an open can of beer on the front driver's side floor of the Dodge Ram vehicle.

I just want to address the -- both the odour of liquor coming from the subject, D. P., and also coming from the vehicles. As far as the difficulty in smelling alcoholic beverage on the -- on -- on the breath of D. P., a number of people had alerted you to the difficulty in smelling the breath; correct? A Yes. Q That was David Burke, Constable Fillion, and later Constable Jones. All three of them said it -- it wasn't that easy to smell; correct? A Yes. Q And a couple of them even pointed out that D.

P. had diabetes, that -- that he's on insulin and that his blood sugar was high and that it was difficulty [ sic ] distinguishing between these two substances. A Yes. Q The -- this isn't something that you put into the ITO, is it? A No, it's not. Q Probably should have been; correct? A Yes. . . . Q Okay. The -- so as to what the extent that any symptoms that were being observed was a result of lack of insulin, all that you knew was that his blood sugar was high and that he normally takes insulin. A. Yes.

Q Now, as far as the open can of beer, the -- the way you've framed it at paragraph 3.2(b), (as read) There was an open can of beer on the front driver's side floor of the Dodge Ram vehicle. Would you agree that if -- if you just read that just like that, that you'd draw the inference that the person was probably drinking that can of beer? A Yes. Q The -- and whether that can was open or whether it was split open in the accident, was not entirely clear, was it? A I don ’ t remember. Q Okay. Oh, just in -- in -- I should correct something in fairness.

That when Constable Fillion was talking about -- about difficulties in discerning whether his insulin -- at -- at another place he -- he talked about the substance from a diabetic that's created when there isn't enough insulin as being acetone. And he said in another place, he said I could be smelling acetone. One place says insulin, another says acetone in the file. But just -- just to correct that.

The – the way that Constable Fillion on November 23rd, 2015, in a supplementary report referred to the Pilsner can of beer, he described it as -- I'll -- I'll just read you the whole -- the two sentences. (as read) I went and looked in the truck that P. was in. I observed one Pilsner can that had -- excuse me -- I observed one Pilsner can that was broken open and that the cab smelled of liquor.

Do you know whether or not the can had the tab flipped up so that you could tell it was being drank or whether it was just ruptured on the side and -- and the tab was still intact, or do you remember? A I don ’ t remember. Q Obviously, if it had simply been ruptured in the accident, that's something that should be shared with the -- the justice of the peace. A Yes. Q The -- about three weeks before you -- before you swore the ITO you interviewed the captain from the fire department, David Burke, who had -- and the first responder that spent the most time initially with D. P.; is that correct? T77, L 1 - 31 A Yes.

Q And in -- and -- and he too was one of the people that was having difficulty discerning whether this faint smell was insulin or alcohol. He went on to say that he did not notice any other signs that D. may have been drinking; is that correct? A Yes. Q That fairly important statement was not shared with the justice of the peace, was it? A No, it was not. Q That's a statement that should have been. A Yes. Q This -- this witness told you that when he was dealing with my client, that he was in an extremely hurt condition. A Yes. Q Also dealing with -- with D.

P.'s condition at the scene, in the report that Constable Fillion filed on the 23rd of November, 2015, he specifically said to you that while he was dealing with him, that P. didn ’ t open his eyes while I was talking to him. His face and head were covered in blood. A Yes. Q That would tend to suggest that there had been a head injury. A Yes. Q That wasn't something that was shared with the justice of the peace either, was it? A No, it was not.

Re-examination T 83, L 17 - 41, T 84, L 2- 35 Q MR. O'HARA: So you say you did have a difference of opinion with Corporal Green regarding those obstructions -- A At the -- Q -- was that your testimony? A -- at the time, yes. Q At the time. Okay. And so what you put into your ITO regarding the obstruction, did you believe that to be true? A Yes. Q And when you were drafting the ITO, did you turn your mind to Mr. P.'s head injury? A No, I did not. Q And did you turn your mind to the fact that he was receiving medical treatment? A No, I did not.

Q Regarding the signage at the intersection that was not there, do you have any information whether or not there was ever a sign there? A I do not. Q But to the best of your knowledge there were no signs at that time? A No, there weren't any. Q Did you see any indication that there was a sign and it had been removed? A No. Q Did you see any indication there was a sign but may have been damaged or anything like that? A No. Q So would it be fair to say that this is an uncontrolled intersection? A Yes.

Q And are you aware of any other uncontrolled intersections in or near that area? A Yes. Q Can you tell me how many you'd be aware of? A There are a number, but I couldn ’ t give you a number. Q You couldn ’ t give me a number but -- A No. Q Sorry, I couldn ’ t hear what you said. A There are quite a few, but I couldn ’ t give you a number. Q Okay. Quite a few. So in -- in your opinion it wouldn't be unusual to have an uncontrolled intersection -- A No. Q -- in that area? A No. Q And I understand there were no lights there as well; is that correct? A No. Q Is that unusual in your opinion? A No.

VII DETERMINATION [ 21 ] The accused bears the burden on this application of establishing on a balance of probabilities that his s. 8 Charter rights have been infringed due to the deficiencies in the ITOs such that no search warrant or production orders could have issued. Further, if so established, that any evidence flowing therefrom should be excluded pursuant to s. 24(2) of the Charter .

Section 8 analysis [ 22 ] The fundamental obligation upon Constable Doucette in preparing the ITOs was to provide “full, fair and frank disclosure” regarding the central issue of whether the accused’s ability to operate his motor vehicle was impaired by alcohol leading to the fatal collision. The standard required to be achieved in this regard was one of reliable evidence that might reasonably be believed - in other words reasonable probability to believe the offence had been committed.

[ 23 ] Constable Doucette was well aware of her obligation in this respect: T 48, Lines 17 - 30 Q Okay. The -- now, when -- when we're talking about the two ITOs, you're aware that one of the things that needs to be explained to the judge is the basis for the criminal offence that you're alleging in the information to obtain. A Yes. Q And so the -- the only offences that were being alleged at the time of the information to obtain are offences that involve impaired driving; is that correct? A Yes.

Q And so you were alive to the fact that you needed to give the justice of the peace information which might fairly reflect on whether or not D. P. was impaired. A Yes. [ 24 ] What is readily apparent however from the cross-examination of Constable Doucette is that she came up well short in her duty to provide full, fair and frank disclosure. This is borne out by her mischaracterization and omission of highly relevant information material to the determination that the authorizing Justice of the Peace was required to make. [ 25 ] The Court identifies the following to illustrate this conclusion:

a) deliberate misstatement at para. 3.1(

h) of her ITO that: “there was nothing obstructing the view of traffic traveling South on Highway 21 from the 2 mile grid”. This is in direct contradiction to the expert opinion of RCMP Forensic Collision Reconstructionist, Corporal Doug Green, who stated in his report, which Constable Doucette had for some three weeks prior to swearing her ITO: “view obstructions may have been a factor as there was a large pile of wooden oil field platforms located on the Northeast corner of the intersection.

These may have prevented the drivers from seeing each other.” Why Constable Doucette chose to deliberately falsify Corporal Green’s conclusions was revealed in her evidence that she “had a difference of opinion with him.” Her statement is all the more remarkable when considering that first, the stack of platforms referred to by Corporal Green are plainly visible in the photographs attached to the report which she would have obviously seen with her own eyes, and second, that Constable Doucette as a junior constable would see fit to simply override the conclusions of her own expert witness because she did not agree with him;

b) Failed to disclose Corporal Green’s conclusion that “road signage may have been a factor as there were no yield or stop signs in place at the intersection”;

c) Failed to disclose Corporal Green’s conclusions that the impact speed of the Ford (southbound on Highway 21) was a minimum of 107 km/h and the speed of the Dodge (accused’s vehicle) was a minimum of 42 km/h - knowing the speed limits were 100 km/h and 80 km/h, respectively;

d) Failed to disclose Corporal Green’s conclusion that “neither the Dodge or Ford had any pre-impact braking” stating rather at para 3.1(

g) of her ITO: “there was a lack of skid marks from P’s vehicle”;

e) Failed to disclose that the deceased operator of the southbound Ford was subsequently determined to be sober but yet took no evasive action with respect to the collision;

f) Failed to disclose according to Constable Fillion that a can of beer found in the cab appeared to have been ruptured - referring in her ITO to an “open can of beer” and there being “a strong odour of liquor inside the Dodge Ram”;

g) Failed to disclose that P. had sustained head injuries in the collision which could have been construed as serious given that he was thrown from his vehicle and rendered unconscious and was observed by Constable Fillion to have a significant amount of blood on his head and face;

h) Failed to disclose that Constable Fillion and Captain David Burke on scene and Constable Jones subsequently at RUH all had difficulty detecting any odour of alcohol emanating from the accused;

i) Failed to disclose the information Constable Fillion received from the attending paramedic that P. was diabetic and that any breath odour may well have been acetone relating to insulin;

j) Failed to disclose that Constable Fillion could not smell any alcohol odour in the ambulance;

k) Failed to disclose that Captain Burke noted no other signs of alcohol impairment or ingestion other than the faint odour of alcohol which he also stated may have been from insulin;

l) Failed to disclose that this route taken by the accused from the party was not his usual route to where he lived;

m) Failed to disclose in the ITO sworn in September 2016, that the passenger M.B. did not disclose any driving evidence of D.P. that was a concern to him. [ 26 ] It is obvious that Constable Doucette drafted the ITOs with a callous disregard for accuracy and fairness, focusing solely on obtaining the warrant and production orders creating a scenario skewed to this purpose. The closest parallel the Court could find is R v Morelli [11] , a Saskatchewan case ultimately heard in the Supreme Court of Canada. Mr.

Justice Fish made the following remarks which are particularly on point to the within case: [58] In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not .

Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

[59] The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. Indeed, in the Court of Queen’s Bench, the judge who had the benefit of observing the Crown’s witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed.

It is nonetheless evident that the police officer’s selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time. [60] The facts originally omitted must be considered on a review of the sufficiency of the warrant application. In Araujo , the Court held that where the police make good faith errors in the drafting of an ITO, the warrant authorization should be reviewed in light of amplification evidence adduced at the voir dire to correct those mistakes.

Likewise, where, as in this case, the police fail to discharge their duty to fully and frankly disclose material facts, evidence adduced at the voir dire should be used to fill the gaps in the original ITO. [ 27 ] When utilizing the evidence from the cross-examination of Constable Doucette, the question then becomes whether the requisite standard has been met. [ 28 ] Certainly the accused was drinking earlier in the evening.

However, the eye witness accounts consisted of “she saw P. drinking”, “she did not see how much P. had to drink” (witness R.S.), “she observed P. at the party with a drink in his hand (witness J.K.), “he saw P. was around and had a couple of beers that he was aware of”, “he thought P. was in better shape than he has seen some people” (witness J.W.).

No witness account suggests any indicia of impairment or intoxication or impaired behaviour by the accused. [ 29 ] From that point there is no driving evidence whatsoever put before the J.P. other than the accused failed to yield entering Highway 21 causing the collision. Tempered against that is that the accused could have been travelling well under the speed limit of 80 kph, there was no yield or stop sign marking the intersection and the line of sight for the two vehicles appeared to have been obstructed.

Further evidence of this latter point is that neither vehicle applied any braking manoeuvres prior to the collision, and that the deceased was determined to be completely sober. [ 30 ] Also, there appeared to be only faint odours of alcohol from the accused as described on scene and at RUH as well as in the ambulance on scene, the accused is diabetic which meant the smell could have been acetone relating to insulin and the accused suffered significant head injuries which could well have impacted his memory of events.

Further, Captain Burke observed no other signs of alcohol impairment and any alcohol odours found in the truck cab could be attributed to the ruptured can - as opposed to an open can. [ 31 ] In

summary, it is the Court’s view that had all of this information been properly and accurately placed before the issuing Justice, his belief could not have transcended beyond mere suspicion to probability that the accused’s ability to operate his motor vehicle was impaired by alcohol. Accordingly, the standard would not have been met such that the search warrant and production orders could have issued. [ 32 ] In all of the circumstances, the Court finds that the accused has established a breach of his s. 8 Charter rights.

Section 24(2) analysis [ 33 ] The Court now turns to the tripartite Grant [12] analysis to assess the effect of admitting any evidence garnered as a result of the s. 8 breach having regard to (1) the seriousness of the Charter infringing conduct, (2) the impact of the breach on the Charter protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. Seriousness of Charter-infringing conduct

[34] The Charter-infringing conduct in this case is serious. Preparation of the ITOs was tailored for only one result. The duty toprovide full, frank and fair disclosure was abrogated in favour of misstating or omitting material information that undoubtedly wouldhave augered against obtaining the requisite warrant and production orders. [35] In Morelli, Mr. Justice Fish stated at para 102: [102] The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct.

Police officersseeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and fulldisclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements thatare likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts.

And they must take care notto otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a searchwarrant. [36] The result in the present case is in fact more egregious than in Morelli, as the J.P. was mislead, in part, intentionally. [37] The first branch of Grant favours exclusion. Impact of the breach on the Charter protected interests of the accused [38] This case involves the seizure of bodily substances for which citizens generally expect a high degree of privacy.

The Supreme Court of Canada has held that the gathering of blood evidence is more intrusive than that of a breath sample by comparison.[13] [39] In R v Dyment[14], the Court determined that even when the blood sample is sought from a medical institution, such as here,rather than by way of a direct demand from the accused, the expectation of privacy and dignity is nonetheless triggered: [21] This Court has recently dealt with privacy of the person in R. v. Pohoretsky, (SCC), [1987] 1 S.C.R. 945.

The casebears some resemblance to the present one, but there the doctor had taken the blood sample from a patient, who was in an incoherent anddelirious state, at the request of a police officer. In holding this action to constitute an unreasonable search and seizure, my colleagueLamer J. underlined the seriousness of a violation of the sanctity of a person's body. It constitutes a serious affront to human dignity. Asthe Task Force on Privacy and Computers, supra, put it, at p. 13: ... this sense of privacy transcends the physical and is aimed essentially at protecting the dignity of the human person.

Our persons areprotected not so much against the physical search (the law gives physical protection in other ways) as against the indignity of the search,its invasion of the person in a moral sense. [22] Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual.

Asthe Task Force put it (p. 13): "This notion of privacy derives from the assumption that all information about a person is in a fundamentalway his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information aboutoneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situationsabound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, andrestricted to the purposes for which it is divulged, must be protected.

Governments at all levels have in recent years recognized this andhave devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, forexample, the Privacy Act, S.C. 1980 81 82 83, c. 111. [40] The Court determines the impact of the breach on Charter protected interests in these circumstances to be high rather thanmerely fleeting and technical. Citizens should comfortably expect such rights to be rigorously protected. [41] Consideration of the second factor in this case favours exclusion.

Society ’s interest in adjudication of the case on its merits [ 42 ] The seriousness of the charges before the Court cannot be overstated. The tragic circumstances culminating in the death of an innocent driver and bodily harm to his passengers and the continued prevalence of drinking and driving in our province favours inclusion of the evidence. [ 43 ] The Courts however are mandated to take the long view when considering this factor. It was stated thus in Grant at para 84 : It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue.

Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus.

As pointed out in Burlingham , the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins , “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [ 44 ] Undoubtedly this sets a very high bar. As a result, however, we as citizens enjoy and live in a society that values an indivisible commitment to due process before the law. [ 45 ] As much as one may wish a criminal charge to be heard, it cannot be at the expense of the administration of justice falling into disrepute.

If the standards to obtain evidence by ex parte judicial means are so easily brushed aside as demonstrated on the facts herein, this can only be the result. [15] [ 46 ] Accordingly, consideration of the third branch of Grant favours exclusion. VIII CONCLUSION [ 47 ] All evidence flowing from the s. 8 breach in this case obtained from the deficient ITOs shall be excluded from the trial pursuant to s. 24(2) of the Charter .

____________________ R.D. Jackson, J [1] R v Garofoli, (SCC), [1990] 2 SCR 1421, 60 CCC (3d) 161 [Garofoli] [2] Actually, there were three Informations sworn - two on February 10, 2016 concerning blood samples and hospital records,respectively, and the third in September, 2016 for further health records.

All three ITOs were identical in content. [3] Garofoli, supra, at p 188 [4] See R v Pires; R v Lising, 2005 SCC 66, [2005] 3 SCR 343 [Lising]; R v Bisson, (SCC), [1994] 3 SCR 1097, 94 CCC(3d) 94 [5] 2000 SCC 65, 149 CCC (3d) 449 [6] See R v Melenchuk, [1993] BCJ No 558 (QL) (CA) at para 15; Simonyi-Gindele v British Columbia (Attorney General), (BC CA), [1991] 2 BCAC 73 (QL); R v Buckingham, [2007] NJ No 151 (QL) (SC) at para 316; R v NNM, (ON SC), [2007] OJ No 3022 (QL) (SC) [7] Garofoli, supra, at p 198; Lising, supra, at para 35; R v Vukelich (1996), (BC CA), 108 CCC (3d) 193 (BCCA)leave refused [1996] SCCA No 461 (QL) [8] 2014 ONSC 1624, at para 13, 315 CCC (3d) 295 [9] 2010 SKQB 293 at para 13 - 14, 360 Sask R 167 [10] Lising, at para 40 [11] 2010 SCC 8, [2010] 1 SCR 253 [Morelli] [12] 2009 SCC 32, [2009] 2 SCR 353 [Grant] [13] R v Taylor, 2014 SCC 50, [2014] 2 SCR 495 [14] (SCC), [1988] 2 SCR 417; see also R v Colarusso (SCC), [1994], 1 SCR 20 [15] See generally R v Cote, 2011 SCC 46, [2011] 3 SCR 215; R v Burlingham, (SCC), [1995] 2 SCR 206, 97 CCC (3d)385; R v Lomenda, 2015 SKCA 40 at para 6, 457 Sask R 326