R. v. C.M., 2013 MBPC 23

Citation: R. v. C.M. Date: April 29, 2013 Citation Number: 2013 MBPC 23 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Alana M. Parashin, ) for the Crown - and – ) C.M., a young person ) ) ) Michael Stienstra, ) for the Accused ) ) Judgment delivered: ) April 29, 2013 Restriction on Publication: Please note that the Youth Criminal Justice Act, section 110(1), which prohibits the publication of any information that may identify a person as having been dealt with under this Act, applies to this judgment. CARLSON, P.J.

Introduction [ 1 ] C.M. is charged with impaired driving causing bodily harm, and with operating a motor vehicle while the concentration in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to sections 255(2) and 253(1) (

b) of the Criminal Code of Canada (the " Criminal Code "). These offences allegedly occurred on September 18, 2011 in the Rural Municipality of Lac du Bonnet, Manitoba. [ 2 ] On September 27, 2011, RCMP Constable Green submitted a sworn Information to Obtain a Search Warrant to a Judicial Justice of the Peace pursuant to s. 487.01 of the Criminal Code , to search for evidence of the offence of impaired driving causing bodily harm contrary to s. 255(2) of the Criminal Code , in the premises of Pinawa General Hospital at 30 Vanier Drive in Pinawa, Manitoba.

The search warrant was issued by the JJP (the “issuing JJP”) to Constable Green. [ 3 ] The RCMP executed the search warrant at the Pinawa General Hospital and seized a sample of C.M.'s blood, drawn on September 18, 2011.

The Crown plans to tender evidence of the analysis of the blood sample at trial. [ 4 ] C.M. filed a Notice of Motion prior to trial, seeking an Order excluding her blood sample from the evidence at trial. [ 5 ] C.M. argues that the search warrant is invalid, that the seizure of her blood sample was a breach of her s. 8 right guaranteed by the Canadian Charter of Rights and Freedoms (the " Charter "), and that her blood sample and any analysis of it should be excluded from the evidence at trial pursuant to s. 24(2) of the Charter . [ 6 ] A voir dire was entered into at the outset of the trial to determine those issues. [ 7 ] This is the Court's ruling on the voir dire.

The issue on the voir dire [ 8 ] The first issue to be determined is whether the search warrant is valid. If it is, there is no s. 8 Charter breach. If it is not, then the search warrant must be quashed, and the search for, and seizure of the blood sample was unreasonable and a breach of C.M.'s s. 8

Charter right. [9] If there was a s. 8 Charter breach, the Court must then decide a second issue, namely whether the blood sample, and anyevidence of analysis of it, is to be excluded from the trial evidence, pursuant to s. 24(2) of the Charter. Standing [10] Before being entitled to make a s. 8 Charter challenge, C.M. must establish on a balance of probabilities that she had areasonable expectation of privacy affected by the search (R. v. Edwards, (SCC), [1996] 1 S.C.R. 128).

The Courtaccepts that C.M. had a reasonable expectation of privacy in blood that was taken from her at the hospital in the course of her receivingmedical treatment. The Crown did not contest this point. Onus and burden on the s. 8 Charter breach application [11] There is a presumption that the search warrant issued is valid (R. v.

Feldman, (SCC), [1994] 3 S.C.R. 832). [12] C.M. says the warrant is invalid because it was obtained pursuant to an affidavit of a police officer that failed to disclose amaterial fact, namely a prior inconsistent statement of a witness. [13] The onus is on C.M. to demonstrate, on a balance of probabilities, that her s. 8 Charter right has been infringed by the nondisclosure (R. v. Collins (SCC), [1987], 1 S.C.R. 265). The test for review of the issuance of a search warrant [14] In R. v.

Garofoli (SCC), [1990] 2 S.C.R. 1421, the Supreme Court of Canada set out the procedure for reviewof the sufficiency of an authorization to intercept private communications. In R. v. Grant, (SCC), [1993] 3 S.C.R. 223,the Supreme Court of Canada confirmed that same procedure applies to the review of an issuance of a search warrant. [15] The trial judge conducting the review is not to review the Information to Obtain de novo, and is not to substitute his or herdecision for the decision of the judge or justice who granted the search warrant.

Rather, the reviewing judge must determine whetherthe issuing judge or justice could have granted the warrant on the basis of the reliable information contained in the affidavit filed insupport of the application for the warrant, as amplified on the review. To be successful in quashing a warrant, the accused mustestablish, on a balance of probabilities, that there was no basis on which the issuing justice could have been satisfied that there werereasonable and probable grounds to believe that evidence of an offence was in the place to be searched. [16] The Supreme Court of Canada more recently in R. v.

Araujo 2000 SCC 65 , [2000] 2 S.C.R. 992, applied Garofoli andstated the test for review as follows: “Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization couldhave issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizingjudge.” Evidence on review of a search warrant [17] The reviewing judge, on the voir dire, may amplify the evidence to consider evidence in addition to what the issuing judge orjustice had in the Information to Obtain.

The judge is entitled to consider "all evidence bearing on the existence in fact of reasonable andprobable cause shown to be in the knowledge of the police at the time the warrant was sought.” (R. v Gordon, (MBCA), 138 Man. R. (2d) 298 (C.A.), paragraph 36; referencing R. v. Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539(N.S.C.A.). The evidence on the voir dire [18] The evidence that C.M. requested the Court consider on the review of the issuance of the search warrant, on the voir dire,consists of: • The affidavit of Jodie McRae sworn March 25, 2013; • The affidavit of Lynda Porteous sworn March 1, 2013; and,

• The viva voce evidence of RCMP Constable Kyle Bernier. [19] Ms. McRae and Ms. Porteous are both legal assistants employed by C.M.'s lawyer's firm. [20] Ms. McRae's affidavit attaches as exhibits a certified copy of the Warrant to Search issued by the issuing JJP dated September27, 2011 for the blood taken from C.M. (the "search warrant"), and also a certified copy of the Information to Obtain a Search Warrantsworn September 27, 2011 by Constable Jeffery Green (the "ITO"). [21] Ms.

Porteous' affidavit attaches, as exhibits, portions of the notes of Constable Jeffrey Green dated September 18, 2011 andportions of the notes of Constable Kyle Bernier dated September 18, 2011. [22] C.M. requested that the evidence to be considered on the review be amplified beyond the ITO, and include the police officers'notes and Constable Bernier's oral evidence.

The Crown had no objection to the amplification of the evidence and the Court ruled thatthe evidence would be so amplified. [23] What is added to the evidence on review, by the amplification, is a statement made by the other occupant of the vehicle,Michael Zawislak, at the scene of the accident, to both Constables Bernier and Green that the driver of the vehicle was an unknown malewho had left the scene. This statement is inconsistent with what Mr.

Zawislak told police several days later in a formal statement - thatthe driver had been C.M. [24] Constable Green, in the ITO, describes that at about 4:10 a.m. on September 18, 2011, police attended to a single vehiclerollover collision near Lac du Bonnet. C.M. was lying on the ground next to a 2000 Ford Ranger vehicle. There were two people nearthe scene who appeared to have been in the vehicle, C.M. and Mr. Michael Zawislak. C.M. said she was not the driver and that thedriver was unknown to her and she did not know where that person was. She said she was seated in the passenger seat.

A strong odour ofliquor on C.M.'s breath was detected and she stated she had had two alcoholic beverages. C.M. and Mr. Zawislak were taken to PinawaHospital for treatment. On September 20, 2011Constable Green spoke with Constable Bernier, and read the notes of Constable Bernierwho had also attended the scene. Those notes disclosed that C.M. had told Constable Bernier she was not the driver, that that driver wasa person unknown to her, she did not know where that person was, and that she was seated in the passenger seat.

On September 23,2011, Constable Green obtained a warned cautioned statement from Michael Zawislak in which Mr. Zawislak told him that he and C.M.were at a party, that he was intoxicated, and that when the party was over he asked C.M. for a ride home even though he knew she hadbeen drinking. Mr.

Zawislak said that when they left the party there were only two of them in the vehicle, that C.M. was driving and hewas in the passenger seat. [25] In the notes of both Constable Green and Constable Bernier, it is indicated that, at the scene, Michael Zawislak told them thatan unknown male was driving the vehicle at the time of the accident. [26] Constable Bernier's viva voce evidence was to the effect that when he attended the scene he spoke to Mr. Zawislak and recordedwhat Mr. Zawislak said in his notes.

This included that he did not know the driver, that the driver left the scene, that he met the driver atthe party, that the driver was sober and that the driver took off prior to the police arrival. At some point after the incident he had a call athome from Constable Green and he knew Constable Green was applying for a warrant. Constable Green asked about comments C.M.made about drinking. He does not recall if he gave his notes to Constable Green or if he put them in a hard copy file. [27] The fact that Mr.

Zawislak said, at the scene, that an unknown male was driving the vehicle at the time of the accident, was notcontained in the ITO at all. This is what C.M. says is a material fact, and she says that its non disclosure renders the warrant invalid. What is the effect of not including Mr. Zawislak's comments about the driver in the ITO? [28] The Court accepts that the comments of Mr. Zawislak made to Constable Bernier that are in his notes, reviewed by ConstableGreen, and the information in Constable Green's own notes, that Mr.

Zawislak advised the driver was someone unknown to him, whohad left the scene, are material facts. [29] The question then becomes - what is the effect of that non disclosure on the validity of the search warrant? [30] In R. v.

Garafoli, at paragraph 56, the Supreme Court of Canada addresses how this plays into the review process, at paragraph56: "In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being aprerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge." [31] The legal obligation of an affiant seeking an ex parte authorization is full and frank disclosure of material facts (R. v.

Araujo,2000 SCC 65 , [2000] 2 S.C.R. 992, at paragraph 46). [32] This is not a case where the information in the ITO sworn by Constable Green is false or fraudulent, so as to require it to beexpunged on review, and requiring the reviewing judge to determine whether the issuing JJP could have issued the warrant based on theinformation left on the record. Rather, the information contained in Constable Green’s ITO is incomplete, and contains only one of the

two versions given by a witness as to who the driver of the vehicle was. The information in the ITO remains to be considered, but withthe addition of the statement made by Mr. Zawislak at the scene that an unknown male was the driver. The test as to whether the issuingJJP could have issued the warrant then needs to be applied to the totality of the information in the ITO plus the statement made by Mr.Zawislak at the scene (R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, paragraph 44). [33] If the fact that Mr.

Zawislak had told the officers at the scene that the driver of the vehicle was someone unknown to him, whohad fled the vehicle after the accident, had been included in the ITO, would there still have been reliable evidence that might reasonablybe believed on the basis of which the authorization could have issued? That is, if the statement made by Mr.

Zawislak at the scene as tothe identity of the driver, had been included with all the evidence considered by the JJP who issued the warrant, was there sufficientreliable evidence to permit the JJP to find reasonable and probable grounds to believe an offence had been committed by C.M.? [34] The information that the issuing JJP had at the time she considered the application for the search warrant included thefollowing: • at the scene of the one vehicle accident, only two people appeared to have been involved in a motor vehicle accident, C.M. and Mr.Zawislak • C.M. had a strong odour of liquor on her breath • C.M. said she was not the driver, that the driver was unknown to her and she did not know who that person was, and that the driverhad left the scene • C.M. admitted to having consumed alcohol • C.M. said she was in the passenger seat • the vehicle involved in the accident was registered to Debbie Metcalf • both C.M. and Mr.

Zawislak were taken to Pinawa Hospital for medical treatment • several days later, Mr. Zawislak gave a warned cautioned statement to Constable Green saying C.M. was driving the vehicle at thetime of the accident. He said both he and C.M. had been consuming alcohol that night [35] So, the issuing JJP did have before her C.M.'s exculpatory statements that she was not the driver, that the driver was someoneelse, that she did not know who that person was, and that she was in the passenger seat. The issuing JJP knew that C.M.’s claim of notbeing the driver was contradicted by Mr.

Zawislak's formal statement that C.M. was in fact driving. Mr. Zawislak's statement was givenseveral days after the incident, while sober, and under warning and police caution. [36] If the issuing JJP had before her the statement of Mr. Zawislak at the scene that C.M. was not the driver and that it was someunknown third party, she would have had two conflicting versions on the record as to who the driver was given by Mr. Zawislak. At thescene, Mr. Zawislak, by his own admission, was intoxicated. When he gave his formal statement to police he was not. At the scene,Mr. Zawislak was in the vicinity of C.M.

When he gave his formal statement, he was not. At the scene, the accident had just occurredand Mr. Zawislak had sustained some injuries. His formal statement was provided after being warned and cautioned. The issuing JJPcould have concluded that the statement made by Mr. Zawislak several days after the incident was more reliable than the one he gave atthe scene. In the totality of the circumstances, on the evidence before her, together with evidence of Mr.

Zawislak's statement at thescene that an unknown male was the driver, the Court finds that the JJP could have still issued the warrant as there was some reliableevidence (being Mr. Zawislak's warned and cautioned statement) that C.M. was the driver. [37] There was no evidence presented on the voir dire as to why Constable Green did not include the information about Mr.Zawislak's statement at the scene, that someone else was the driver. C.M. argues that its omission in the ITO was deliberatelymisleading. C.M. did not request leave to cross examine Constable Green at the voir dire.

The onus to establish the warrant's invalidityis on C.M. If she wished the Court to infer a deliberate exclusion of the statement or an intent to mislead the Court on the part ofConstable Green, it was incumbent upon C.M. to ask Constable Green questions under oath on the voir dire about why that informationwas not included in the ITO. Without any evidence whatsoever on that point, the Court is certainly not going to make any finding thatthe evidence about Mr. Zawislak's statement at the scene was deliberately excluded from the ITO by Constable Green.

Decision on the voir dire [38] The Court finds that the search warrant was validly issued. Accordingly, the RCMP, in seizing C.M.'s blood sample at PinawaHospital, pursuant to the warrant, did not breach her s. 8 Charter right. [39] Having found there was no s. 8 Charter breach, it is not necessary for the Court to address the s. 24(2) Charter argument. [40] C.M.'s motion is dismissed. “ORIGINAL SIGNED BY:”

CARLSON, P.J.