R. v. Halman, 2015 ONCJ 372

Citation: R. v. Halman , 2015 ONCJ 372 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DARREN HALMAN P R O C E E D I N G S A T S E N T E N C E BEFORE THE HONOURABLE MR. JUSTICE M.S. FELIX on Friday, June 12, 2015 at OSHAWA, Ontario APPEARANCES : S. Kumaresan Counsel for Crown P. Thorning Counsel for D. Halman FRIDAY, JUNE 12, 2015 R E A S O N S F O R J U D G M E N T

FELIX, J: (Orally) Darren Halman is charged with impaired operation, operation over 80 and dangerous driving arising out of an incident that occurred on April the 9th, 2013. The Crown and Defence Counsel submitted that a resolution of the case was dependent on the decision on an application pursuant toSection 8 of the Charter or Rights and Freedoms. The single issue to determine in this trial is the admissibility of the applicant’s medical information including a blood sample.

Onus on the Application It is clear from the facts in this case that blood was drawn and analyzed from the applicant by a non-state actor independent of any stateaction or direction. It is also clear that medical records were generated independent of any state action. Sergeant Michael Di Pasquale of the Ontario Provincial Police authored a production order pursuant to

Section 487.012 of the CriminalCode of Canada to obtain the medical records of the applicant. He also authored a search warrant pursuant to

Section 487 of theCriminal Code of Canada to obtain a vial of blood obtained from the applicant and forwarded to the ground floor Laboratory atSunnybrook Health Sciences Centre, room 52. C Wing. The material portions of his Information to Obtain are identical in both theproduction order and the search warrant. Sergeant Di Pasquale sought and received prior judicial authorization to obtain these items. These seizures are presumptively valid inlaw. The Court heard submissions concerning the onus on this application.

I have considered the submissions but having considered thematter carefully I believe the test is more nuanced and modified than that submitted by counsel. Onus The framework is as follows. The role of the reviewing judge is a limited one. The test is not whether the reviewing judge would have issued the warrant, but ratherwhether the issuing justice could have issued the warrant. That is, the question is simply whether the information to obtain set outenough “reliable evidence that might reasonably be believed” (R. v. Araujo 2000 SCC 65 , [2000] S.C.J. No. 65, (S.C.C.), atpara. 54, R. v.

Vu 2013 SCC 60 , [2013] S.C.J. No. 60, at para. 16 or whether there was “sufficient credible and reliableevidence” (R. v. Morelli 2010 SCC 8 , [2010] S.C.J. No. 8, (S.C.C.), at para 40), to support the issuing justice’s decision to grantthe warrant. Per R. v. Lising 2005 SCC 66 , [2005] 3 S.C.R. 343 at paragraph 30

“it is clear that the reviewing judge only inquires into whether there was any basis upon which the authorizing judge could be satisfiedthat the relevant statutory preconditions existed. There is a narrow basis for exclusion. Even if it’s established that the informationcontained within the I.T.O. was inaccurate or that a material fact was not disclosed, this not necessarily detract from the statutorypreconditions. In the end the admissibility of the evidence will not be impacted under

Section 8 if there remains a sufficient basis for theissuance of the authorization in that case”. Procedural Considerations 1. The warrant for blood and the production order for medical records are presumptively valid in law (Lising, para 30). 2. The onus is on the applicant to establish on a balance of probabilities that a

Section 8 breach has occurred. 3. If no

Section 8 breach is established, the warrants are valid and the evidence is admissible at trial. 4. If a

Section 8 breach is established, the impugned information must be excised from the warrant for it was obtained contrary to theCharter (Morelli, para 41, Araujo, para 57-58). 5. Ordinarily the reviewing Court excludes erroneous information and considers any amplification evidence however in this case theCrown did not pursue this issue – the issue of amplification evidence. 6. If a

Section 8 breach is established, and the impugned information is excised from the warrant, the Court must then determine if therewas any basis upon which the authorizing justice could be satisfied with respect to the statutory preconditions for issuance. If there isany basis, the warrant is valid, the search is not unreasonable, and the evidence is admissible (Lising, para 30; Morelli, para 97). 7. If the Court finds there was no basis upon with the authorizing justice could be satisfied, the warrant could not have issued, thesubsequent search violates

Section 8 of the Charter, and the analysis on R. v. Grant 2009 SCC 32 , 2009 S.C.C. 32 is requiredto determine admissibility (Morelli, paras 61, 96-98). Position of the Applicant The focus of the Charter application concerned paragraph number 251 of the Information to Obtain (common to both the application fora search warrant and application for a production order) which reads: 251) On Friday May 3, 2013, at 1:30 p.m., I attended the Health Records and Patient Registration Department at Sunnybrook HealthSciences Centre located at 2075 Bayview Avenue, Toronto, Ontario, Room E123.

I spoke with the supervisor for the Research andRelease of Information Section, Roopjeet Kwantra. I learned that HALMAN’s medical records pertaining to his stay at SunnybrookHealth Sciences Centre are located inside the Health Data Resources Department, room E123. I also learned that HALMAN’s bloodwas analyzed at the emergency room and was sent to the laboratory. (I have underlined the portion of paragraph 251 beginning “Ilearned” and ending with “laboratory”). The application materials at paragraph 16 set out submissions concerning alternative routes to a

Section 8 Charter breach. Thealternative submission was narrowed at the conclusion of the application during submissions to an assertion that the underlined contentof paragraph 251 simply was not correct or true. Specifically, that Sergeant Di Pasquale was not advised by Roopjeet Kwantra of the information underlined above. The conclusionbeing that the information contained in paragraph 251 was false and misleading.

The remedy sought was excision of this information from both I.T.O.’s. It was submitted that absent the excised information the I.T.O.’s could not satisfy the statutory pre-conditions for issuance. The Applicant further submitted that the information to obtain in support of the seizure of blood was stale and devoid of current information establishing that the blood sample remained in the premises to be searched. Position of the Respondent The Respondent Crown submitted that the warrant and production orders were valid and supportable. The Crown submitted that Sergeant Di Pasquale’s evidence should be accepted. Further, that even if a breach of

Section 8 of the Charter was found, and the information was excised, the warrant and production order could have been granted based on the remaining information. The Respondent Crown provided no additional submissions concerning the currency of the blood sample issue. The Analysis This Application requires that I assess the evidence of Mr. Kwantra and Sergeant Di Pasquale and make findings of fact subject to the applicable standard of proof. I will commence with these findings as they are directly relevant to resolution of the Charter Application.

Evidence on the Application The Application Record contains the I.T.O. for blood and the I.T.O. for medical records. There were two witnesses on the Application – Roopjeet Kwantra and Sergeant Di Pasquale. In

summary, Mr. Kwantra testified such that the Court was invited to infer that he did not provide the information outlined in paragraph 251. Sergeant Di Pasquale testified that having regard to his notebook entries and the timing of the preparation of his I.T.O.’s, he did in fact receive the information outlined in paragraph 251 from Mr. Kwantra. Finding I find the evidence of Sergeant Di Pasquale persuasive. I prefer his evidence to that of Mr. Kwantra. Mr. Kwantra did in fact provide the limited information outlined in paragraph 251 of the I.T.O.’s Notwithstanding this finding, I am satisfied that the Applicant has established a breach of

Section 8 of the Charter in relation to the acquisition of this information and I must engage the analysis further to determine whether or not the evidence is admissible.

The Evidence of Mr. Kwantra and Sergeant Di Pasquale The Evidence of Mr. Kwantra I have high regard for the knowledge and training of Mr. Kwantra but his evidence was marred by two features. One related to reliability, the other, credibility. First of all, he had no notes (although he had reviewed the patient file before testifying) of his interaction with Sergeant Di Pasquale. He had no record of his conversation with Sergeant Di Pasquale. He testified that he interacts with countless police officers in his role on an everyday basis.

His testimony was dominated by suggestions of what he would have done rather than what was actually done. In this sense the reliability of his evidence was impacted. At the time he interacted with Sergeant Di Pasquale there would have been no need to ensure a comprehensive record of their dialogue and interaction. It is not surprising that none exists. Second of all, there was some evidence of bias in the evidence of Mr. Kwantra. In reviewing the record (which I did) most of his answers touched on the hospital policy concerning non-disclosure and/or the applicable legislation.

Even simple answers were prefaced by a careful reliance on the hospital policy or the applicable legislation. For example, when asked if the information sought was available in a computer in the department he responded by relying on the policy and legislation rather than the simple acknowledgement that the information was accessible to him. Mr. Kwantra was careful to rely on the hospital policy and the legislation to support his view that he would not have communicated any details to Sergeant Di Pasquale. This constant refrain detracted (albeit only slightly) from his credibility in my respectful view.

The reason that I prefer the evidence of Sergeant Di Pasquale has less to do with a credibility contest determination and more to do with the fact that his evidence is more reliable than Mr. Kwantra’s evidence. Mr. Kwantra did not testify specifically that he did not provide the impugned information. He did not have a note or a specific recollection. He could not recall his dealings with Sergeant Di Pasquale because of the number of police officers he interacts with. He did his best to answer questions based on his normal practice and what his best expectation as to what he would have done in the ordinary course.

The Evidence of Sergeant Di Pasquale The evidence of Sergeant Di Pasquale is not entitled in law to any additional weight or special consideration. I must simply weigh his evidence on this Application. I prefer the evidence of Sergeant Di Pasquale and accept that the impugned information underlined above in paragraph 251 of his information to obtain was in fact provided by Mr. Kwantra. I hasten to point out that I am addressing this issue on a balance of probabilities on a Charter application. My options are to prefer the evidence of Mr.

Kwantra, prefer the evidence of Sergeant Di Pasquale, or I might be in a position where I could not decide as between the two of them. If I preferred the evidence of Mr. Kwantra this would support the applicant’s view that no information was provided. This could provide support to the contention that Sergeant Di Pasquale fabricated or falsified evidence in his I.T.O.’s. If I could not decide the issue as between the witnesses I would have to question whether or not the applicant has established the evidentiary record necessary to support the alleged

Section 8 breach. The simple truth of the matter is that I prefer the evidence of Sergeant Di Pasquale for a number of reasons. Sergeant Di Pasquale’s evidence is more reliable. He has the better record of the interaction with Mr. Kwantra. He was also able to provide some specifics concerning his attendance at the hospital. I am in a position to make the following findings concerning Sergeant Di Pasquale’s attendance at the hospital:

i. He attended Sunnybrook Hospital on May 3, 2013 arriving at 12:50 hours. ii. He spoke to a woman in the Records Department and he was referred to Roopjeet Kwantra. iii. He noted a name, Sumara Amjit, employee of Sunnybrook, in the release of information department. He has no recollection of why he noted this name or the significance thereof. iv. He inquired specifically concerning the applicant Mr. Halman. v. He had a conversation for approximately 17 minutes with Mr. Kwantra. vi.

While he does not have specific notes of the words he used to embark upon an inquiry, it is reasonable to infer that he did in fact inquire specific to the applicant. Put another way, Mr. Kwantra did not spontaneously provide information absent an inquiry. This inferred inquiry that I find in this case attracts Charter scrutiny because of the nexus between the inquiry and the pieces of information provided. vii.

Based on the specific cross-examination of Sergeant Di Pasquale concerning his notes I find that his notes of May 3 rd , 2013 contain the following specific entries at 13:03 hours: a. “Roopjeet Kwatra (arrow) supervisor release of information department” b. “13:03 speaking with Kwatra” c. “[Arrow] – data analyst – Sumara Amjjit in release of information department” d. “[Arrow] records are stored in the health data resources department quadrant E123” e. “Release all records relating to admission of patient April 9, 2013 until April 14, 2013” f. “Three to four business days to get certified copies” g. “Patient’s blood analyzed at emerge room and then it gets sent to the lab B1 quadrant” h. “Halman’s medical records pertaining to his stay at Sunnybrook Health Sciences Centre are located inside the Health Data Sciences Department E123” This is from the cross-examination of Sergeant Di Pasquale May 4, 2013 at 13:53 hours during this application. i .

It is important to note the singular reference in item “e” above patient and the possessive tense in item “g” above patient’s blood. Sergeant Di Pasquale’s memory and note taking was not perfect. Sergeant Di Pasquale did not specifically note in his notebook that Mr. Kwantra provided the impugned information. He could not recall if Mr. Kwantra looked at a computer or file folder when providing this information nor did he make a note of it. He did not recall Kwantra outlining privacy policies to him nor did he make a note of it.

Much was made of the fact that during the conversation with Kwantra the notes made proximate to this time do not contain the name of the applicant. I considered this issue and the submissions carefully but in the end I did not find it to be of great significance. The officer

testified that he was there to inquire as to the procedure relevant to his intention to obtain prior judicial authorization in relation to theapplicant. Further, unlike many other police investigators and investigations (in my view), the notes related to this investigation were ina single police-issue large-page format bound notebook. The entirety of 79 pages of notes were contained in that single notebook. Thenotebook did not contain notes pertaining to any other investigation. In the end, the absence of a detail in notes does not mean it did not occur. I have to consider the evidence as a whole. R. v. Zack,

(1999) O.J. No 5747 (O.C.J.); R. v. Machado, (2010), 2010 ONSC 277 , 92 M.V.R. (5th) 58. Sergeant Di Pasquale had access to his notes during the drafting of the I.T.O.’s and commenced preparation of his I.T.O.’s the followingday. There were further reasons to cite supporting my view that I prefer his evidence. 1. The Officer’s Evidence Overall I found that Sergeant Di Pasquale was clear and precise in his testimony. He was willing to accept suggestions from defence counsel. He did not appear to have a bias.

While one might find an institutional bias on the part of an officer in favour of his own investigation, I did not find evidence of it. Hetestified such that it is obvious that he is the sort of officer who is careful about details. He was not testy or sensitive to implied criticismduring cross-examination. But for his lack of experience in the area I have no doubt that specific notes would have been maintained regarding the entirety of hisinteraction. There were countless areas of examination where Sergeant Di Pasquale could have massaged the truth and simply providedan answer more in line with his position.

For example, he could have testified that he did in fact mention Mr. Halman’s name clearly toMr. Kwantra. He could have said that he believed that Mr. Kwantra searched for the information on a computer but he could not recallor he was not sure. 2. Time Lag for Medical Records I heard evidence that in general there is a time lag from the creation and completion of medical records (which is ongoing) and thecompletion of medical records and the final entries made by medical staff and their arrival in the records department.

This permitsmedical staff to complete their entries upstairs in the hospital rather than having to attend the records department to complete theirentries in the basement. Sergeant Di Pasquale could not be precise concerning the specific location of the records at the time of hisattendance. The simple fact that medical records would exist is perhaps a reasonable inference depending on the circumstances. Forexample, if the accident is a minor “fender bender” perhaps it is not a reasonable inference to draw that medical records exist.

But in thiscase, the officer knew that there was a serious accident causing serious bodily injury to the applicant. He knew that the applicant washospitalized for a significant period of time. He knew what hospital provided care to the applicant. The fact that medical records existedis capable of reasonable inference on that record. I suspect that police officers with more experience in warrant writing would rely on thereasoned inference. But in this case, the officer did not rely on that inference – he testified that he was advised the records exist.

Thatthey existed and were stored in a particular location known as E123 was peculiar information provided to him. 3. The Fact that Blood Was Drawn The fact that blood was drawn and analyzed by the laboratory was peculiar information provided to the officer. He did not rely on

inference. He relied on the fact that he was so advised. I accept this evidence and find it persuasive on the issue. 4. Other Notes Made By the Officer I note another piece of information provided to the officer that was not relied on by him – “Release all records relating to the admission of patient April 9, 2013 until April 14, 2013” (and I may have misstated the date when I referenced this earlier, but its April 9 to April 14 th ).

While the Sergeant could not recall specifically why the April 14 date was significant to him it is significant that it was a piece of information disseminated to him relating to the care of the applicant. Once again, this is a peculiar piece of information provided. It references the patient in the singular and a time frame for records. I note as well the contrast between paragraphs 252 and 251 in the I.T.O. It is clear that in paragraph 252 the officer outlined general information received (i.e. that is to say blood specimens are stored inside a locked fridge inside Room 52, C wing).

This may be contrasted with the specific information he received in paragraph 251 and it is relevant to the applicant’s suggestion that when conversing with Mr. Kwantra he only received general information. 5. Absence of Evidence On this application I may also consider the absence of evidence. I have no evidence concerning the access to the applicant’s patient record in this case. I am satisfied that such records are maintained otherwise how does the hospital regulate access in accordance with the law?

As a person who reads newspapers in the Toronto area I am aware that there are publicized alleged breaches of privacy in relation to hospital records (for example, access to the Former Mayor of Toronto’s records and just a couple of weeks ago in June 2015 well publicized charges in relation to access to over 8000 patient records at a Toronto hospital). While these circumstances are not in evidence before me, I am not a hermit living on top of a mountain. I know that there are electronic records relating to the access to patient records. This could be corroborative of Mr.

Kwantra but they are not available on this application. 6. Reliability of Evidence I prefer the evidence of Sergeant Di Pasquale over the evidence of Mr. Kwantra because of features associated with the reliability of evidence. He testified that possessed of the information received and aided by his notes he commenced working on the I.T.O. relatively quickly on Saturday May 4, 2013 continuing the following Sunday, Monday and Tuesday. The Evidence of Mr.

Kwantra and Sergeant Di Pasquale: Conclusion A consequence of my acceptance of Sergeant Di Pasquale’s evidence is that I find that the Applicant has established a breach of

Section 8 albeit different than the one articulated. The applicant has not established that Sergeant Di Pasquale engaged in fraud or misrepresentation in his I.T.O.’s. Nevertheless I draw an inference that Sergeant Di Pasquale commenced his 17 minute conversation with Mr. Kwantra with some sort of inquiry (i.e. that is to say Mr. Kwantra did not spontaneously provide information concerning a particular patient). He must have been directed by an inquiry. Sergeant Di Pasquale was advised of the impugned material in paragraph 251 of his I.T.O..

While a breach of hospital policy and the Personal Health Information Act are factors relevant to the reasonable expectation of privacy inquiry, the breach of the policy or legislation therein does not ipso facto mean that a breach of

Section 8 has occurred. I will now examine the issue of “reasonable expectation of privacy”.

The Informational Disclosure and Reasonable Expectation of Privacy This case engages a core fundamental concept in a free and democratic society – reasonable expectation of privacy. The notion of areasonable expectation of privacy is flexible and must adapt to changes in society. This is clear from recent cases from the SupremeCourt of Canada and Ontario Court of Appeal grappling with the challenging area of technological evidence. I will examine this concept and then consider its application with respect to the seizure of medical records and the seizure of blood in thiscase.

Expectation of Reasonable Privacy The analysis of whether a reasonable expectation of privacy exists begins with two questions. (1) whether the applicant had a subjectiveexpectation of privacy, (2) whether that subjective expectation of privacy was objectively reasonable. (R. v. Tessling, 2004 SCC 68, [2004] 3 S.C.R. 432, at para. 19; R. v. Kang-Brown, 2008 SCC 18, [200] 1 S.C.R. 456 and R. v. Patrick2009 SCC 17, [2009] 1 S.C.R. 579). As to informational privacy I must have regard to the guidance of the Supreme Court of Canada in a recent case R. v. Gomboc, (2010)2010 SCC 55 , S.C.J.

No. 55 (S.C.C.) at paras 27 and 28 2.2.2 Is the Expectation of Privacy Reasonable in the Totality of the Circumstances? 2.2.2.1 The Informational Privacy Interest 27. “The Charter guarantee of informational privacy protects the right to prevent certain personal information from falling into the hands of the state. The scope of constitutional protection will vary depending upon the nature of the information and the purpose for which it is made available (R. v.

Colanusso, (SCC), [1994] 1 S.C.R. 20, at p 53, Patrick, para 38)”. 28. “In Plant, Sopinka J. rejected a categorical approach to informational privacy, protecting only information that is only “personal and confidential”: (p 293) He framed the constitutional protection given for informational privacy in the following purposive terms”:

“ In fostering the underlying values of Dignity, integrity and autonomy. It is fitting that

Section 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.

This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual”. [p. 293] “ Sopinka J. also outlined factors that could form the basis for a reasonable expectation of privacy which included: “the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated” [p. 293].

Whether the Applicant had a Subjective Expectation of Privacy The nature of the privacy interest sought to be protected in this case is informational – the existence of blood and the existence of medical records. I find that Sergeant Di Pasquale did not attend with the express purpose of obtaining the medical information – he attended for the purpose of understanding the procedure relevant to his intention to seek judicial authorization to seize medical information. As I outlined earlier the information was obtained and produced by non-state actors.

I have already found that Sergeant Di Pasquale must have inquired specifically regarding the Applicant before the Court. The question I must resolve is whether or not there is a reasonable expectation of privacy in circumstances where an inquiry is made and information relating to a patient is communicated. In R. v. Rodrigues [2012] O.J. No. 3013 Justice G.M. Miller of the Superior Court of Justice, sitting as a

summary conviction court, considered this issue. The Court did not disturb the learned trial judge’s finding that disclosure of relatively neutral health information did not violate the Personal Health Information Protection Act , 2004. At paragraphs 31 to 34 Justice Miller held:

31. “I do not find that the trial judge erred in concluding that the limited disclosure of relatively neutral health information by the lab technician did not violate the Personal Health Information Protection Act, 2004 and in fact the disclosure was in accordance with and as allowed by this statute”. 32. “Mr. Rodrigues argues that the receipt, by police, of the information that a blood sample had been taken from Mr. Rodrigues, at a certain time and by a particular person, amounts to an unauthorized seizure contrary to

Section 8 of the Charter”. 33. “This argument was considered and analyzed thoroughly by the trial judge with reference to R. v. Dyment (1988), (SCC), 45 C.C.C. (3d) 244 (S.C.C.); R. v. Silk [1989] O.J. No. 671 (Ont. Dist. Ct.); R. v. Dersch (SCC), [1993] 3 S.C.R. 768 (S.C.C.); R. v. LaChappelle [2003] O.J. No. 5274 and 2007 ONCA 655 , [2007] O.J.

No. 3613 (CA.) as well as the Colbourne decisions”. 34. “While I note that the offences for each of these cases, and consequently the disclosure of medical information in each case predates the Personal Health Information Protection Act, 2004, given the finding in this case that there was no violation of that Act, I concur with the trial judge’s conclusion that there was no breach of the Charter in the circumstances of this case. The Rodriques decision is a decision of the Superior Court of Justice –

Summary Conviction Appeal division.

I would automatically consider it to binding upon me but for a few key factual differences in this case that I must address. In Rodrigues a lab technician approached the police voluntarily and advised the police that blood had been drawn from the Applicant. The lab technician voluntarily accessed the blood and placed a seal on the vial. In Rodrigues the learned trial judge held that in those circumstances the disclosure by the lab technician was in accordance with the Personal Health Information Protection Act , 2004.

It is also significant that in Rodrigues there was no evidence concerning a hospital policy prohibiting disclosure. In this case Mr. Kwantra provided the information triggered by the inquiry made by Sergeant Di Pasquale. There is an internal policy governing disclosure at Sunnybrook Hospital. In the end however after careful analysis, I view this case as sufficiently similar to Rodrigues such that I am bound to follow that decision. I should say that I am prepared to find that Mr.

Kwantra did not violate the Personal Health Information Protection Act, 2004 when he disclosed information in this case for the express purpose of facilitating a police investigation in preparation of a warrant. Reasonable Expectation of Privacy – Blood and Medical Records This issue is challenging and requires a careful consideration of the approach outlined by Mr. Justice Sopinka in Plant . I have questioned whether disclosure concerning the existence of blood and that it was tested reveals “personal and confidential” information.

But as I read the passage from Plant again and I quote: “In fostering the underlying values of Dignity, integrity and autonomy it is fitting that

Section 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [p. 293] The investigating officer inquired and he was advised concerning three specific pieces of information:

(1) That medical records belonging to the applicant were located in a particular place in the hospital

(2) That blood was drawn from the applicant

(3) That the blood drawn from the applicant was sent to the laboratory for analysis It is important to recognize that in many blood warrant cases that I am familiar with the police are continually investigating a collision.

They attend the hospital where they are in the position to become aware of the fact that a particular medical treatment occurred. In this case the officer in charge was not in this position. He attended the hospital several weeks later to inquire as to the procedure. On these facts I find that the Applicant (in his status as a patient) has a limited subjective reasonable expectation of privacy that is objectively supportable in his medical records and his blood.

While disclosure of the fact of records, the fact of blood drawn, or perhaps even the fact that blood was analyzed may not disclose a wealth of information, it does disclose some information that the patient is entitled to expect would be kept private. “Reasonable expectation of privacy” is an evolving concept. I believe that the evolution of this concept is such that reasonable persons in society would not expect that particular details of their medical care would be disclosed based on the facts and the circumstances in this case.

Having made this finding I will now excise the impugned information from the I.T.O. in support of both the warrant and the production order and consider whether there was any basis upon which the authorizing justice could have been satisfied with respect to the statutory preconditions for issuance. Any Basis for Issuance The I.T.O. in this case is thorough, complete, and lengthy. The affiant conducted a lengthy investigation of this case. Of note, the affiant even disclosed some concerning information from the early stages of the investigation in an obvious consideration of his duty to be full and frank.

It is evident that Sergeant Di Pasquale took great care to be comprehensive in providing an account of the investigation. The I.T.O. is over 50 pages long and over 252 paragraphs in length. Some lengthy I.T.O.’s in my experience fail to adequately set out the investigation. In this case, every paragraph in this I.T.O. clearly and efficiently advances the investigation. Overall, I find the I.T.O. for the production order and the search warrant more than adequately addresses all of the statutory preconditions for issuance.

On the particular facts in this case, the issuing justice received a reasonable basis to believe that medical records would exist in relation to the treatment of the applicant. This was not a minor accident. There was a lengthy stay in hospital. While I agree that the I.T.O. might be strengthened by a paragraph outlining a reasonable inference that medical records are commonly associated with the hospitalization of accident participants this was not available to Sergeant Di Pasquale given his limited experience in the area. In any event it was a reasonable inference available to the issuing Justice.

Frankly, any reasonable person could draw that inference on the facts in this case. As such, notwithstanding the excision of the impugned information from Mr. Kwantra, the warrant for medical records could have issued.

The medical records are admissible in this trial. I have considered the issue carefully with respect to the blood sample and I am drawn to the same conclusion, having regard to theparticular facts in this case. Recall that the accident in this case was a serious accident causing serious injury and an extended stay in thehospital. While I was not referred to this my research reveals that the Ontario Court of Appeal addressed this issue in a case called R. v.

Manders2007 ONCA at para. 15 where the Court said: 15. “According to the informant, the doctors examining the appellant at the hospital were concerned about back injuries. The appellant had been thrown from the vehicle. The issuing Justice was entitled to draw the inference, at the least from the material contained in the information if not from everyday experience, that a routine hospital procedure in the treatment of accident victims whose serious injuries have not yet been determined is to take a blood sample for medical and hospital procedures. See R. v.

Katsigiorgis (1987), (ON CA), 39 C.C.C. (3d) 256 at 260 (Ont. C.A.) per Lacourciere J.A. In the Manders case the Ontario Court of Appeal endorsed this reasonable inference. Again, I remind myself that the test is not whether I would have issued the warrant. The test is consideration of the fact that thisinference was available to the issuing Justice given the magnitude of the collision and the medical care thereafter. It would not benecessarily available in a minor “fender bender” accident or an accident where a brief attendance at hospital was required.

But in thiscase, given the serious injuries and lengthy stay in hospital that inference endorsed by the Ontario Court of Appeal is sound. I find that the issuing Justice could have authorized the search warrant for blood. I will now briefly address the 24(2) Grant analysis briefly for the purpose of any review of this decision. GRANT ANALYSIS Seriousness of the Charter Infringing Behaviour The first consideration under the Grant analysis involves evaluating the state conduct and the public confidence in the criminal justicesystem.

As outlined above Sergeant Di Pasquale attended the hospital to inquire as to their procedures and processes. He was intent on

seeking judicial authorization to seize evidence. It is reasonable to infer that the evidence was available. He was told some limited information. The conduct that gave rise to the breach was his attendance and inquiry. In my respectful view this is closer to a technical breach. Sergeant Di Pasquale did not have extensive experience in this area but he did not display a disregard for the privacy interests involved – he was intent on getting a warrant and he did obtain one. The searches were judicially authorized. Even with the impugned information removed I found that the warrants could have issued.

I see no need for the Court to disassociate itself from this conduct. This factor favours admission of the evidence. IMPACT ON CHARTER PROECTED INTERESTS OF THE DEFENDANT The technical breach resulted in the officer having some limited medical information concerning the defendant. The defendant was entitled to expect that information relevant to his medical care would remain private. I must admit to limited consideration of an aspect of discoverability in this case. Had the officer been more experienced perhaps he would have sought a warrant for medical records first.

The medical records would have revealed that blood was drawn. He could have then obtained a warrant for the blood. As already set out earlier in this decision, arguably the production order for the medical records could have issued without a specific confirmation that records were available. On the facts in this case it was an available inference for the officer and the issuing Justice that did not require the verbal confirmation provided. This factor favours admission of the evidence. Society’s Interest in Adjudication on the Merits This is a serious case. The evidence is reliable – medical records and blood.

The officer obtained judicial authorization to seize the records and the blood. I have found that he did not mislead the issuing Justice, nor engage in fraud. I have found that the warrant and production order could have issued absent the impugned information. This factor favours admission. Finally I must address another issue raised by the Applicant.

STALENESS – Currency of the Information The applicant argues that the I.T.O. is deficient in that there were no grounds to believe that the blood sample would exist at the timejudicial authorization was sought. I do not accept this submission for the following reasons: 1. There is no evidence before the Court on this application concerning the hospital’s policy regarding the retention of blood samples. For all I know the policy depends on a number of variables or is completely random. 2. Manders provides some support for the inference that blood samples would exist. 3.

The delay in obtaining the blood may be in part explained by the fact that I heard evidence that on May 2 Sergeant Di Pasqualetelephoned Sunnybrook Hospital and received an update on the defendant and he was advised that the patient was discharged that day. Thus there is an available inference that treatment was ongoing and it may strengthen the inference that blood could exist or remain. 4. The issuing Justice could be satisfied in the absence of information concerning the retention of blood samples.

Given the magnitudeof the accident and the extent of the injury I believe that an authorizing Justice could find that blood was obtained and could be satisfiednotwithstanding the absence of evidence concerning the retention periods if any. I have considered the cited case of R. v. Adansi, 2008 ONCJ 144 , [2008] O.J. No. 1202 (OCJ) a decision of an experienced andlearned Jurist - Mr. Justice S. Clark. It is a persuasive case but not applicable to the situation I am dealing with on this application.

InAdansi the temporal nexus was influenced by the surrounding circumstances including a finding that there was a two month gap betweenthe provision of confidential human source information and the issuance of a warrant to seize a firearm. This is not an I.T.O. dealingwith an object that might be more susceptible to movement (e.g. firearm). Conclusion The application is dismissed. I will hear from the Crown concerning what count or counts to register convictions concerning and which should be conditionally stayed. * * * * * *