Her Majesty the Queen - v. -, 2015 SKPC 128

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 128 Date: December 16, 2015 Information: 24500769 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brandin George Cannon Appearing: Brian Hendrickson, Q.C. For the Crown Tim Hanson For the Accused JUDGMENT M.

GORDON , J [ 1 ] Brandin George Cannon is charged that on or about the 26 th day of October 2013 at Moose Jaw District in the Province of Saskatchewan: Count 1 - having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code ; and Count 2 - on or about the 26 th day of October 2013 at Moose Jaw District in the Province of Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and 253(1) (

a) of the Criminal

Code . [ 2 ] A Charter notice was served and filed alleging Mr. Cannon’s s. 8 rights under the Canadian Charter of Rights and Freedoms were infringed or denied.

The following remedies are requested: (1) exclusion of all hospital records and any and all other evidence obtained subsequent to the breach of the accused’s rights; (2) exclusion of all evidence obtained directly or indirectly by the issuing of the March 25, 2014 warrant based on the Information to Obtain of Constable James Adams dated March 25, 2014; and (3) such other remedy as the Honourable Court may deem fit. [ 3 ] On June 11, a Charter voir dire was held with respect to the production order.

Further adjournments were granted to allow for counsel to respond to questions raised by the Court and make additional oral and written submissions. [ 4 ] The Crown called the main investigating officer, Constable James Adams. The Information to Obtain a production order was filed as Exhibit 1 and 2 in the voir dire . Most of the evidence of Cst. Adams consisted of cross-examination by defence counsel. [ 5 ] Cst. Adams was a member of the RCMP stationed at Moose Jaw on October 26, 2013. He was the lead investigator on this matter. Cst. Adams stated that he was dispatched to an accident scene on October 26, 2013.

He was given the name of Joe Studdy, who had reported the accident using the 911 service. Later Cst. Adams learned that the correct name of this individual is actually Joe Sterenot. [ 6 ] On cross-examination, the officer said he relied on his notes as well as his recollection of events to prepare the Information to Obtain. He was dispatched to an accident on the west side of the Highway #39 overpass at Highway #1. He took a statement from a witness, Ms. Barnes, who saw the accident. She saw the vehicle in front of her cross her lane and leave the eastbound lane, travel over the median to the west ditch.

Between 1:55 a.m. and 2:08 a.m., the officer examined the vehicle and identified the owner as the accused in these proceedings. The officer found Mr. Cannon, who was being attended to by several medical personnel. Mr. Cannon had been fitted with an oxygen mask at this time. The police officer decided to stay back and allow the medical attendants plenty of space to do what they had to do. He was not given any information at this time on Mr. Cannon’s condition. Cst. Adams found a beer box of broken bottles near the vehicle and at 2:33 a.m., he noted one broken bottle with no cap.

The vehicle was on its roof. [ 7 ] Cst. Adams turned his mind to the cause of the accident and given the description of the accident by witnesses, he wondered if alcohol had been a factor in this accident. At 2:35 a.m., Cst. Adams went to the Moose Jaw hospital emergency and saw Mr. Cannon. He did not note any alcohol smell in the emergency room. At 2:37 a.m., he questioned Mr. Cannon and at 2:42 a.m., the officer could smell alcohol coming from Mr. Cannon even though Mr. Cannon had on an oxygen mask. At 2:08, he formed the suspicion that the accused was impaired. He admitted that Mr.

Cannon answered his questions and that Mr. Cannon’s voice was strong but he felt it was muffled due to the effects of alcohol. At that point, Cst. Adams felt he had reasonable and probable grounds to make the Intoxilyzer demand. At 2:50, he left the hospital. He went to the detachment to get the standard breath kit which he could not locate. [ 8 ] At 3:26 a.m., Cst. Adams returned to the hospital and had a brief exchange with a nurse which he described as not going well. Cst. Adams at this point did not know the severity of Mr. Cannon’s injuries. Cst. Adams said that at the scene, Mr.

Cannon appeared to be in bad shape but at the emergency room, he appeared much improved and actually shook hands with the officer. Cst. Adams did not know what treatment was being provided to Mr. Cannon. [ 9 ] The constable said that Exhibit P-1, the Information to Obtain, paragraphs 3.5(

i) to (

k) were correct. He acknowledged that there was only one bottle without a cap which was not mentioned in the Information to Obtain. He reiterated that paragraph 3.10 of the ITO included the grounds to support a breathalyzer demand. He acknowledged that there could be other reasons for single vehicle accidents as well.

[10] Paragraph 3.8 of the ITO also related the officer’s interaction with Mr. Cannon. The officer was of the opinion that a personwould not try to shake a police officer’s hand when their hand was covered with blood unless they were under the influence of alcohol. The officer agreed that trauma and confusion as a result of the accident could also account for the actions. [11] Cst. Adams agreed that his conversation with the nursing staff occurred after the police officer had his grounds to make thedemand.

The officer also agreed that he did not include in the ITO that at 2:42 a.m., the accused’s strong clear voice was muffled by theoxygen mask and that he did not smell alcohol in the ER when the police arrived. DEFENCE ARGUMENT [12] The defence bears the burden on the balance of probabilities. The defence submits that Cst. Adams did not have reasonableand probable grounds (RPG) to believe the accused was impaired at the time of the accident or immediately prior to the accident.

Therefore the subsequent ITO and the warrant for the accused’s medical records violated the accused’s expectation of privacy andprotection from unreasonable search and seizure under s. 8 of the Charter. [13] The defence filed two very comprehensive briefs on this matter.

At page 4 of the September 18, 2015 submissions, thedefence states at the bottom of page 4 as follows: Therefore the affiant in an ITO must disclose more than suspicion but less than a prima facie case in their grounds that an offence hadbeen or may have been committed. [14] The defence also refers to The Canadian Broadcasting Corp. v Manitoba Attorney General, 2009 MBCA 122 ,[2009] 250 CCC (3d) 61 (Man CA) [CBC], which talks about “credibly based probability” which is neither proof beyond a reasonabledoubt/a prima facie case nor mere suspicion. [15] At page 6 of the defence submissions, the defence states what I believe is the heart of their argument as follows: Grounds for formal breath and blood demands in the context of impaired driving cases are well litigated and well understood areas oflaw.

To suggest that an affiant may obtain what he knows to be the direct equivalent of such samples without disclosing the wellestablished and uncontroversial required grounds is to suggest that a PO may be obtained without the necessary statutory preconditionbeing met - namely demonstrating sufficient belief that the relevant crime has been committed. If an officer believes strongly enoughthat an impaired driving offence has been committed to make a formal demand for breath or blood samples, as Cst.

Adams testified hebelieved, his belief is reasonable only if he can demonstrate grounds upon which that belief can rely. [16] Further, at the last paragraph on page 7, the defence states as follows: Further, the impact of the Crown’s position on this issue has legally incongruent consequences.

If a PO disclosing less than reasonableand probable grounds can be successfully issued for medical records which prove BAC content in a situation where otherwise a formalbreath or blood demand would be made in regard to an offence under s. 253 of the Criminal Code, an affiant can obtain bodily samplesof BAC or proof thereof without demonstrating the legally required grounds to do so. This circumvents the established s. 8 Charterprivacy interests of the accused in regard to formal s. 253 demands with no justification. It is incongruent to read s. 487.012 as violatingthe Charter when an alternative

interpretation allows it to exist harmoniously with the Charter values of privacy and freedom from unreasonable search and seizure. [17] What I conclude from the defence submissions is as follows: That reasonable and probable grounds is the applicable standardfor a search warrant to be granted and therefore is also applicable to production orders. It is the same expectation of privacy pursuant tos. 8 of the Charter. It is akin to providing breath samples under s. 253 of the Criminal Code. The consequences are the same so thestandard should be the same. The defence says that Cst.

Adams, on an objective basis, did not have the evidence before the issuingjustice of the peace to satisfy this standard. The defence argues that the officer must have reasonable and probable grounds with the

subjective and objective basis by the police officer. The defence discussed the meaning of reasonable and probable grounds in referringto some well-known cases such as R v Bernshaw, (SCC), [1994] 95 CCC (3d) 193 [Bernshaw] and R v Gunn, 2012SKCA 80 [Gunn]. In particular, the defence noted the following from page 216 of Bernshaw: ... The existence of reasonable and probable grounds entails both an objective and a subjective component.

That is, s. 254(3) of the Coderequires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there mustexist reasonable grounds for this belief. [18] In R v Gunn, 2012 SKCA 80 [Gunn], Mr. Justice Caldwell, speaking for the Court, also discusses the meaning of reasonablegrounds at paragraph 7: ... This means the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within thepreceding three hours and that belief must be rationally sustainable on an objective basis (see: R. v.

Bernshaw, (SCC),[1995] 1 S.C.R. 254, at para. 48). This does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v.Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527, at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010ONCA 554 , 259 C.C.C. (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability whichsimply requires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand werereliable and were capable of supporting the officer’s belief that the individual had driven while impaired or “over .08” within thepreceding three hours. [19] In conclusion the defence said that if the Court applies the standard of credibly based probability, the information Cst. Adamsprovided in the ITO is deficient.

As a result, all evidence obtained as a result of the ITO should be excluded under a Grant analysis. CROWN ARGUMENT [20] The Crown at paragraph 36 of its initial brief of law states as follows: It is submitted there was ample information for the justice to issue the PO. The information consists of the fact there was a singlevehicle accident, the accused was the driver and lone occupant, the vehicle travelled across the road and into the ditch and the truck wasfound sitting on its roof. The road was dry and clear. There were broken beer bottles and a crumpled beer box at the scene.

Theaccused told the officer he was having fun and the accused smelled strongly of beverage alcohol when the officer was speaking to him atthe hospital. [21] The Crown argues that the Criminal Code allows this type of investigation and s. 8 can be overcome by a court order orjudicial authorization. This arguably is a much higher standard than suggested by the defence. In this case since authorization wasobtained from a justice of the peace, the only issue on review is whether the issuing justice of the peace could have issued the warrant.

The case law is clear that on review the Court must look at the totality of the circumstances and stresses that this is not a de novohearing. The justice of the peace is entitled to make reasonable assumptions.

In addition, errors or inaccuracies on their own in theInformation to Obtain are not sufficient to strike down the ITO. [22] In R v Francis, 2011 SKPC 30, Judge Hinds quotes from Garofoli, Pires and Lising, all from the Supreme Court of Canada: 22 Further, with respect to the treatment of informant information and referring to Garofoli, the Court in Hopkins stated: [15] Thus, the “totality of the circumstances” must be considered. Weaknesses in one area can be offset by strengths in others.

The issueis whether having regard for the totality of the information sworn to by the officer, the information is compelling, credible andcorroborated (see: Debot and Plant, (SCC), [1993] 3 S.C.R. 281). [16] In Debot the Court considered a number of factors with respect to whether the information provided by an informant wascompelling, credible and corroborated. An informant’s tip may be found more compelling and credible according to the degree of detailand its specificity, such as the names of the participants in the offence; the location of the event; the time of day when the event was to

take place; and whether the informant’s information came from first-hand observations or “mere rumour or gossip?” . . . [19] The fact that more detail can lend greater credibility to an information does not mean that the police must provide more, . . . Thepolice officer has to provide sufficient detail so as to permit the justice of the peace to determine that reasonable grounds exist for thewarrant to issue. [Footnotes omitted] 23 In R. v. Pires; R. v.

Lising, the Supreme Court commented on the purpose of the Garofoli hearing as follows: [30] However, the Garofoli review hearing is not intended to test the merits of any of the Crown’s allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by theCrown on the trial proper.

Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence aboutthe offence obtained pursuant to a presumptively valid court order.. .The reviewing judge on a Garofoli hearing only inquires intowhether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. . . . Hence, there is a relatively narrow basis for exclusion.

Even if it is established that information contained within the affidavit isinaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factualcontext . . . 24 The reviewing court examines whether the statements in the information are supported by the material contained therein, orwhether they are more in the nature of conclusions.

This question must be assessed against the “totality” test, looking to the wholeinformation and excising any misleading parts. [See: R. v. Breton and R. v. Pastro.] [23] Finally, in R v Hersi, 2014 ONSC 1286, the Court said that “reasonable grounds” is a lower standard than a balance ofprobabilities or a prima facie case. If the inference of specific criminal activity is a reasonable inference from the facts, a warrant canissue. The standard of reasonable grounds does not require proof beyond a reasonable doubt or even proof on the balance of probabilities(see also R v Jacobson, ).

THE LAW [24] In R v Wong, 2011 BCJ No 965 (CA), the following procedure was recommended when the validity of a search warrant ischallenged: In

summary, when an accused seeks to contest the validity of a search warrant by challenging the ITO through cross-examination of theinformant, the matter should generally proceed as follows: (

a) the trial judge should determine whether a voir dire is necessary and if so, whether the calling of evidence should be permitted; (

b) if the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused mustobtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination; (

c) cross-examination should proceed to the extent permitted by the order granting leave; (

d) re-examination, if any, should follow the cross-examination; and (

e) the trial judge should determine whether the record as amplified on the review could support the issuance of the warrant. [25] There was no issue taken with the police officer (affiant) being called and cross-examined by the defence. The Crown agreedto this procedure and found that it was proper (see R v Green, 2015 ONCA 579). [26] It is not uncommon for the parties to seek to “amplify” the record on an application to review. This may include evidencealleging that the police purposely misled the issuing justice or that they acted in good faith.

As well, the courts have stated thatamplification integral in the process of review is not to be utilized as a way of circumventing the Criminal Code requirements. Thepolice must make their case to the authorizing justice.

[27] In R v Morris, 1998 NSCA 229 , [1998] 134 CCC (3d) 539 (NS CA) [Morris], the Court described the principleswhich govern amplification as follows at pages 568 and 569:

(1) The trial judge is to determine whether the justice of the peace could validly issue the warrant.

(2) In conducting that review, the trial judge may hear and consider evidence relevant to the accuracy of and motivation for the materialincluded in the Information to Obtain a search warrant.

(3) Fraudulent or deliberately misleading material in the information does not automatically invalidate the warrant. However, it mayhave this effect if the reviewing judge concludes, having regard to the totality of the circumstances, that the police approach to the priorauthorization process was so subversive of it that the warrant should be invalidated. In addition, fraudulent and deliberately misleadingmaterial should be excised from consideration.

(4) In assessing the validity of the warrant, the trial judge, generally, is entitled to consider all evidence bearing on the existence in factof reasonable and probable cause shown to be in the knowledge of the police at the time the warrant was sought.

However, suchevidence cannot be used if it was obtained by unconstitutional means or (I am inclined to think) to amplify fraudulent or intentionallymisleading material in the Information to Obtain. [28] In R v Morelli, 2010 SCC 8, the Supreme Court of Canada indicated that: The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather,“the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58).

Furthermore, thereviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minorerrors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. [29] As a general rule, search warrants must be challenged before the trial judge. The Court must look at whether or not theInformation to Obtain establishes reasonable grounds to believe, by looking at the totality of the circumstances.

In other words, did theInformation to Obtain contain sufficient reliable evidence for a warrant to be issued.

In Morris at page 550, the Court of Appeal in NovaScotia put it this way: ... “credibly-based” probability that an offence has been committed and that there is evidence of it to be found in the place of search. [30] In Hunter v Southam, (SCC), [1984] 2 SCR 145, the Court stated that the state’s interest in detecting crimewill prevail over a suspect’s privacy interest when a credibility based probability replaces suspicion. [31] Again, the case law reinforces the principle that a judge does not have to be satisfied that any of these elements, including therequirement of an offence having been committed, has been established beyond a reasonable doubt by the evidence contained in theITO.

Rather, the question is whether or not the Information to Obtain establishes reasonable grounds to believe. This requires aconsideration of all of the evidence contained in the Information to Obtain. In other words, looking at the totality of the circumstances. The judge must decide whether or not the ITO contains sufficient reliable evidence for a warrant to be issued. [32] It is clear from R v Garofoli, (SCC), [1990] 2 SCR 1421 [Garofoli], that a judge reviewing the issuing of asearch warrant cannot overturn the warrant simply because he or she would not have granted the application for the warrant.

At page1452, the Court in Garofoli stated: If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that theauthorizing judge could have granted the authorization, then he or she should not interfere.

[33] In R v Araujo, 2000 SCC 65 , [2000] 2 SCR 992 at pages 1016 to 1017, the Supreme Court held that: The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing ofthe application for the wiretap. LEGISLATION [34] The relevant legislative provisions engaged in this voir dire are s. 8 of the Charter and s. 487(1) and 487.012(3) of theCriminal Code. These provisions state as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 487(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building,receptacle or place (

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have beencommitted, (

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will revealthe whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against theperson for which a person may be arrested without warrant, or (c.1) any offence-related property, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer orenforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who isnamed in the warrant (

d) to search the building, receptacle or place for any such thing and to seize it, and (

e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to,the justice or some other justice for the same territorial division in accordance with

section 489.1. 487.012(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing informationon oath in 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. [35]

Section 487.012 which deals with the production orders was enacted in 2004 whereas s. 487 dealing with search warrants hasbeen around for a long time. The cases have held, given the similarity in the language of the two provisions, that the procedure andstandard should be the same. In R v Fedossenko, 2014 ABCA 314 [Fedossenko], the Court notes at paragraph 45 Parliament’sdiscussion of the Bill to enact this

section in September 2003, the representative of the Minister of Justice stated as follows: ... “we thought it was necessary to include the same safeguards required by the ... search warrant provisions. ... Before issuing the order,the judge or justice must be satisfied that there are reasonable grounds to believe an offence has been committed ... the same basicjudicial safeguards as required by the existing ... search warrant provisions”. [36] At paragraph 63 in Fedossenko, the Court held: Given the similarity between the objectives of a search warrant and the objectives of a production order and their similar statutory

language, I would have concluded that the requirement for obtaining a production order demanding that a hospital produce its analysis ofa patient’s blood, which analysis was done solely for medical purposes, is the same as that required for obtaining a search warrant toseize that blood, and, for that matter, the same as that required for a valid a blood demand incident to arrest. [37]

Section 478.012(1) states the application may be made in front of a justice who by virtue of s. 2 includes a justice of thepeace. As I have said, the law regarding search warrants equally applies to production orders. Therefore, the test for review of aproduction order is the same as the Garofoli test. The plain reading of s. 487.012(1) sets out the test. The accused bears the burden on abalance of probabilities that there has been a violation of his

section 8 Charter rights. The Court decides that the evidence seized by thepolice was obtained in a manner that infringed or violated his constitutional rights, the onus is again on the accused on a balance ofprobabilities that the evidence ought to be excluded pursuant to s. 24(2) of the Charter, in other words a Grant analysis. [38] In R v Campbell, 2011 SCC 32, Charron J. for the Court summarised the legal principles which govern the review of searchwarrants. At paragraph 14 she wrote: The relevant legal principles are not at issue in this appeal.

Juriansz J.A. correctly followed the approach to reviewing the sufficiency ofa warrant application recently reviewed by this Court in R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253. In order to complywith s. 8 of the Charter, prior to conducting a search the police must provide “reasonable and probable grounds, established upon oath, tobelieve that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

The question for a reviewing court is “not whether the reviewing court woulditself have issued the warrant, but whether there was sufficient credible and reliable evidence” to permit an issuing justice to authorizethe warrant (Morelli, at para. 40). In conducting this analysis, the reviewing court must exclude erroneous information from the ITO andmay have reference to material properly received as “amplification” evidence (R. v. Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992,at para. 58; Morelli, at para. 41). The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (Attorney General)v.

Laroche, 2002 SCC 72 , [2002] 3 S.C.R. 708, at para. 68; Morelli, at para. 131). [39] Therefore, when the Court is asked to review the sufficiency of the Information to Obtain, the Court must not approach thequestion of the issuance of the warrant or production order, I would suggest de novo substituting my view for that of the issuing justice. My role is to determine based on the record that was before the issuing justice as amplified on review whether the issuing justice couldproperly have issued the search warrant or in this case, the production order.

To be clear, the question is not whether I would haveissued the search warrant or production order but whether there was sufficient information that could have permitted the authorizingjustice to conclude that there were reasonable grounds justifying the issue of the warrant or production order. [40] The Supreme Court has cautioned reviewing judges that we must approach our assessment of the ITO in a practical, commonsense, non-technical manner permissibly drawing reasonable inferences from the contents of the ITO.

We are reminded that warrants orITOs are typically issued before any criminal proceedings have been commenced and are usually drafted by police officers, often undertight time constraints and without the assistance of legal advice. Therefore, courts are cautioned not to measure the quality of thedrafting of these documents by legal standards expected of counsel. In other words, some reasonable latitude should be accorded thedrafter of the ITO.

The courts make it clear though, a police officer drafting an ITO must always act with integrity and reasonablediligence, mindful of his or her duty to make full and frank disclosure in an ex parte proceeding and being careful to guard against ormake inaccurate or exaggerated statements that might mislead the reviewing justice. [41] Finally, the case law makes it clear that the reviewing Court must, when assessing the sufficiency of the ITO, look at thetotality of the circumstances to determine whether the ITO reveals the necessary reasonable grounds.

Many courts refer to the standardof credibly based probability which requires proof of reasonable probability or reasonable belief. This is obviously more than a hunch ora suspicion but it is certainly not proof beyond a reasonable doubt. [42] With these guiding principles in mind, I will now consider the sufficiency of the ITO that was placed before the issuingjustice of the peace. [43] First of all, there is no allegation that Cst. Adams acted in bad faith. The few corrections to the ITO are minor and do notchange the situation in my view. Cst.

Adams was told there was a serious accident where a vehicle had crossed two lanes of a busyhighway and landed on its roof in the opposite ditch. This was in the early hours of the morning. There were no adverse weather

conditions. There were beer bottles scattered around the vehicle. The lone occupant of the vehicle was the accused and he appeared in serious condition at the time. At the hospital, Cst. Adams was aware that blood samples had been taken. Cst. Adams could smell alcohol coming from Mr. Cannon even though Mr. Cannon was wearing an oxygen mask. Mr. Cannon’s hand was covered with blood but he tried to shake the officer’s hand. The officer went to retrieve a blood kit. It was his opinion he had reasonable grounds to make an Intoxilyzer demand and advised Mr. Cannon of that. He gave Mr. Cannon his s. 10(

b) rights to counsel. It was at this point that Mr. Cannon, according to the officer, ignored the police officer and would not respond. The officer felt Mr. Cannon was feigning sleep. [ 44 ] From the evidence presented by the officer and contained in the ITO, even with the minor corrections, I am clearly satisfied that the officer had reasonable grounds to believe that an offence under the Criminal Code had been committed. The officer knew that Mr. Cannon was the driver of the vehicle. He knew that the vehicle had crossed two lanes of a divided highway and landed on its roof in the opposite ditch.

There were beer bottles around and there was the strong smell of liquor. There were no adverse weather conditions and information from the witness is that all of a sudden this car just basically went out of control as indicated. [ 45 ] What must be measured are the facts as understood by the police officer when the belief was formed. The Court must weigh the reasonableness of the officer’s belief at the time. I find the officer had ample objective and subjective grounds to make the demand.

While I realize that s. 487.012(3) is satisfied if the officer has reasonable grounds to suspect an offence under the Code has been committed, in this case the officer clearly had the higher standard of reasonable grounds to believe an offence had been committed. Therefore I find that there was a basis on which the authorizing justice of the peace could be satisfied that the relevant statutory preconditions existed. When I look at all of the information available to the authorizing justice, even with the amplification and minor changes, I am satisfied that the statutory precondition has been met.

Therefore the search was authorized by law and there was no violation of the accused’s rights under s. 8 of the Charter . [ 46 ] I do want to thank both counsel for their comprehensive briefs and there was more than one brief submitted by each counsel which have been very helpful to me in arriving at this decision. I have to say comments made from the Court at the initial submissions may have sidetracked counsel to some extent and for this I apologize. Of course I am referring to the Taylor case from the Supreme Court of Canada and the comments by the judge that a hospital is not a Charter free zone.

I also mentioned to counsel, especially defence counsel, as to whether there was an argument that the police were circumventing the provisions of s. 254(3) of the Code which authorizes the taking of blood samples in certain situations. The Crown correctly pointed out that defence has not alleged a Charter violation of s. 10(

b) and as well, the case law clearly indicates that as long as the statutory preconditions have been met under either section, either

section is allowed. I agree and reiterate that as long as the process and standard in s. 487.012 is followed and the test stated in subsection 3 is met and there is no bad faith on the part of the police officer, then the procedure is allowed by law. The safeguard of course in s. 487.012 is that the police officer must put forward to the justice of the peace sufficient information to obtain a production order or search warrant, as the case may be. The trial will continue and a new date will be set in consultation with the clerk. M. Gordon, J