Her Majesty the Queen - v. -, 2014 SKPC 203

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 203 Date: December 10, 2014 Information: 24487884 Location: Southey _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan Edward King Appearing: Mr. Derek C. Maher For the Crown Mr. William J. Klebeck For the Accused DECISION ON APPLICATION TO SET M. HINDS , J ASIDE A PRODUCTION ORDER INTRODUCTION [ 1 ] Ryan Edward King is charged that on or about the 3 rd day of September A.D. 2013, at or near Southey, Saskatchewan, he operated a motor vehicle while (1) impaired by alcohol, and (2) over .08, contrary to sections 255(1) , 253(1) (

a) and 253(1)(

b) of the Criminal Code .

[ 2 ] At the onset of the trial the defence brought an application to set aside a Production Order obtained by the police on October 16, 2013, respecting the medical records of Ryan King regarding treatment he received at the Regina General Hospital on September 3, 2013 until discharge. The within application is not based on any alleged breach of Mr. King’s Charter rights. Nor is it an application for judicial review of Information to Obtain a Production Order or the Production Order itself. [ 3 ] A voir dire was commenced. RCMP Constables Jean-Luc LeBlanc and Nathan Bruce testified at the voir dire .

Three exhibits were entered into evidence by agreement of legal counsel. Exhibit P-1 is the Information to Obtain a Production Order sworn by Constable Nathan Bruce dated October 15, 2013. Exhibit P-2 is the Production Order dated October 16, 2013. Exhibit P-3 is a two page biochemistry report respecting Ryan King from the Regina Qu’Appelle Health District dated September 3, 2013. Page 1 of the biochemistry report reveals a blood specimen was collected from Mr.

King at 00:39 on September 4, 2013 and that he had 64.9 mmol/L of ethanol in his blood. [ 4 ] The defence takes the position that the Production Order should be set aside as Constable LeBlanc could and should have made a demand of Mr. King to provide blood samples pursuant to section 254(3) of the Criminal Code . The defence submitted that had the required blood samples been taken from Mr. King pursuant to section 254(3) of the Criminal Code , the defence would have had the opportunity to have one of the blood samples analysed independently of the Crown. As a result, the defence takes the position that Mr.

King’s defence is prejudiced. [ 5 ] The Crown takes the position that the police did not act in a manner that resulted in prejudice to Mr. King. The Crown also contends that the police conduct did not amount to abuse of process. As a result the Crown submits that the Production Order is valid. [ 6 ] In this case I have determined that Constable LeBlanc acted reasonably and with due diligence on September 3-4, 2013 with respect to the investigation of Mr. King. I do not find that Mr. King’s defence has been prejudiced by the use of a Production Order. This was one of the options available to the police.

Hence, the application to set aside the Production Order is dismissed. FACTS [ 7 ] On September 3, 2013, Constable LeBlanc was on patrol, working out of the RCMP Detachment in Southey, Saskatchewan. At 10:34 p.m., Constable LeBlanc was in his police vehicle travelling between Southey and Regina near the Edenwold grid, when he received a call from the RCMP communications centre advising him that a vehicle collision had occurred near the Hamlet of Serath.

The vehicle involved in the collision appears to have been equipped with a communication device that linked the vehicle to an operator who in turn contacted the RCMP communications centre. Constable LeBlanc testified that the details provided to him from the communication centre “were kind of all over the place”. Initially Constable LeBlanc was informed that the male hit the vehicle emergency button by mistake and everything was fine. Constable LeBlanc was then advised the male was in a collision and did not know where he was. Constable LeBlanc was further advised that the male “thinks someone was with him”.

He was then advised that there was someone with the male. Constable LeBlanc was also advised that the male had been drinking. [ 8 ] Constable LeBlanc activated his lights and siren and arrived at the scene of the accident at 11:02 p.m. He observed that firefighters were on the scene. He also observed that a reddish maroon Ford F250 Super Duty truck was fifteen feet from the road in the westbound ditch on its roof and the wheels in the air.

The truck had significant front end damage and the cab of the truck was partially crushed downward. [ 9 ] Constable LeBlanc saw a man, who identified himself as Ryan King, in the back seat area of the truck. He asked Ryan King if there was anyone else in the truck. Constable LeBlanc testified that Ryan King did not seem to be certain whether anyone else had been in the truck. As a result of this answer, Constable LeBlanc asked the firefighters present to do a search for potential bodies or injured people.

During this time, Emergency Medical Services arrived on the scene. [ 10 ] While Constable LeBlanc was at the truck he observed a case of beer in the truck and cans of beer in and outside of the truck. Mr. King was covered with dried blood. Mr. King crawled out of the cab of the truck. Mr. King was then put on a back board by EMS personnel. They advised Constable LeBlanc that they were taking Mr. King to the Regina General Hospital. While Mr. King was on the back board, Constable LeBlanc smelled the odour of liquor coming from Mr. King and observed that Mr. King’s eyes were glassy and

that he slurred his speech. As a result of his own observations, and after speaking to some firefighters, Constable LeBlanc concluded that Mr. King was the driver of the truck and that he had been drinking. [ 11 ] Constable LeBlanc attempted to get some assistance from other police officers to attend the scene of the accident. He initially contacted Corporal Logan of the Southey Detachment. Constable LeBlanc was instructed to contact Corporal Dean Onyskevitch of the Regina Detachment.

Corporal Onyskevitch was contacted and advised Constable LeBlanc that he was off duty and that he should contact two other RCMP officers working out of the Regina area. Unfortunately Constable LeBlanc learned that these two officers were being dispatched to an unrelated call and would not be able to attend the scene of the accident. Constable LeBlanc remained at the scene of the accident for roughly 30 minutes after EMS left with Mr. King for the hospital. While on scene he waited for a tow truck to arrive and took measurements from where the truck left the roadway to where it ended up in the ditch.

He also looked for other bodies. [ 12 ] Constable LeBlanc then drove into Regina. While on route to Regina, Constable LeBlanc spoke to Constable Reid from the RCMP Detachment in Fort Qu’Appelle to discuss blood demand procedures. He testified that he understood that he had to make a blood demand within three hours of the time of his receiving the call regarding the vehicle collision. [ 13 ] Constable LeBlanc arrived at the Regina General Hospital at 1:04 a.m. on September 4, 2013. Once inside the Regina General Hospital, Constable LeBlanc looked for Mr. King. He located Mr. King in the x-ray room.

Constable LeBlanc could smell the odour of liquor coming from Mr. King’s breath. He also observed that Mr. King’s eyes were still bloodshot, his face was red and his speech was a little slurred. [ 14 ] Constable LeBlanc arrested Mr. King for impaired driving at 1:17 a.m. in the x-ray room. When asked if he understood, Mr. King said “I guess, I don’t know.” Mr. King was also advised of his right to contact legal counsel. When asked if he wanted to speak to a lawyer Mr. King initially said he would talk to a lawyer after. Constable LeBlanc was about to read a police warning to Mr.

King when a nurse told Constable LeBlanc to leave the x-ray room as the nurses in the x-ray room had to continue their work on Mr. King. Constable LeBlanc read a police warning to Mr. King at 1:20 a.m. Mr. King said he understood. The nurse kept telling Constable LeBlanc to get out of the x-ray room. Constable LeBlanc left the x-ray room. Constable LeBlanc testified that when the nurse was done with Mr. King in the x-ray room, he looked at his watch and noted that the three hour window of time from the time the accident had first come to his attention had expired.

He testified that he had formulated the grounds to make a blood demand of Mr. King but did not do so due to the passage of time. [ 15 ] Constable LeBlanc subsequently spoke to a doctor at 1:38 a.m. and was advised that blood had been previously drawn from Mr. King at the hospital. The nurses also advised him of the same. He advised the doctor and the nurse that he would be back with a warrant or a Production Order to obtain the results of the blood sample taken from Mr. King. Exhibit P-3 reveals that blood was collected from Mr. King at 00:32 on September 4, 2013. [ 16 ] Mr.

King was placed in another room with two foam blocks keeping his head steady and a breathing mask placed on his face. Prior to departing from the hospital that early morning, Constable LeBlanc attempted to help Mr. King contact a lawyer. This was unsuccessful. Mr. King indicated he wished to speak to a lawyer before speaking to Constable LeBlanc. [ 17 ] Constable LeBlanc subsequently returned to his office and wrote up his report regarding his investigation of Mr. King. Constable LeBlanc was aware that he was going to be transferred to a new detachment in Sandy Bay, Saskatchewan in early to mid September 2013.

As a result his report indicated that a vehicle collision report was required from Mr. King and a Production Order needed to be prepared in order to obtain the results of Mr. King’s blood samples taken at the General Hospital on September 4, 2013. [ 18 ] The investigation regarding Mr. King was reassigned to Constable Nathan Bruce after Constable LeBlanc was transferred out of the Southey RCMP Detachment. Constable Bruce began his review of the investigation file on September 15, 2013. He also spoke to Constable LeBlanc.

Constable Bruce contacted the Regina General Hospital on September 18, 2013 to determine if the hospital still had samples of blood taken from Mr. King on September 4, 2013. On September 19, 2013, Constable Bruce was advised that the hospital lab only kept blood sample for four days, however, the hospital would still have written records of the results of all blood samples. [ 19 ] Constable Bruce testified that he prepared the Information to Obtain A Production Order (Exhibit P-1) which he swore before a Commissioner of Oaths on October 15, 2013.

Constable Bruce obtained a Production Order (Exhibit P-2) which was issued on October

16, 2013. He subsequently served the Health Records Department of the Regina General Hospital with the Production Order. On October 30, 2013 he received a number of medical records regarding Mr. King from the Regina General Hospital. One of those documents was a biochemistry report respecting Ryan King (Exhibit P-3). Page 1 of the biochemistry report reveals a blood specimen was collected from Mr. King at 00:39 on September 4, 2013 and that he had 64.9 mmol/L of ethanol in his blood. ISSUE 1.

Has the accused’s defence been prejudiced as a result of Constable LeBlanc’s failure to make a blood demand of the accused pursuant to section 254(3) of the Criminal Code in the x-ray room of the Regina General Hospital? LAW [ 20 ] Subsections 254(3) and (4) of the Criminal Code read as follows: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; ...

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person's life or health. [ 21 ]

Section 30 of the Canada Evidence Act addresses the matter of “Business Records to be Admitted into Evidence”. It is set out in Appendix “A”. ANALYSIS [ 22 ] The defence urges the Court to find that Constable LeBlanc had ample opportunity to make a blood sample demand of Mr. King well within the three hour time limit set out in section 254(3) of the Criminal Code . I do not agree. [ 23 ] The defence submits that Constable LeBlanc unreasonably delayed in travelling to the Regina General Hospital after EMS departed the scene of the accident with Mr.

King. [ 24 ] In this case Constable LeBlanc remained at the scene of the accident for roughly 30 minutes after EMS left with Mr. King for the hospital. I find that Constable LeBlanc had good reasons to delay his departure from the scene of a serious accident. In the first place, Constable LeBlanc had good reason to believe another person may have been in the truck. This information was provided by Mr. King. In my view, a responsible officer could not immediately abandon the scene of the accident without eliminating the possibility that another occupant of the truck was nearby and in need of help.

To his credit, Constable LeBlanc made several attempts to get some assistance from other police officers to attend the scene of the accident . This proved to be unsuccessful. As a result he remained at the scene of the accident for a relatively short period of time. He made good use of his time. Constable LeBlanc took measurements from

where the truck left the roadway to where it ended up in the ditch, he looked for other bodies and he waited for a tow truck to arrive. Thereafter he proceeded directly to the Regina General Hospital to continue his investigation of Mr. King. He arrived at 1:04 a.m. [25] Once at the hospital, Constable LeBlanc located Mr. King in the x-ray room where nurses were attending to him. ConstableLeBlanc knew he was up against a three hour deadline. He reasonably assumed the accident occurred around 10:30. Constable LeBlancentered the x-ray room and made some additional observations regarding Mr. King.

At 1:17, he arrested Mr. King for impaired drivingand advised him of his right to legal counsel. A nurse then told Constable LeBlanc to leave the x-ray room. The nurses in the roomneeded to work on Mr. King. That work involved putting a breathing mask on Mr. King. Constable LeBlanc attempted to continue hiswork and read Mr. King a police caution. The nurse insisted that the officer should leave the x-ray room. I can find no fault or malafides under these circumstances in Constable LeBlanc’s decision to leave the x-ray room prior to making a blood sample demand of Mr.King.

The three hour deadline for the blood sample demand passed. [26] During his investigation on September 4, 2013, Constable LeBlanc learned that a sample of Mr. King’s blood had been collectedat the General Hospital. In my view, the subsequent police application for a Production Order of Mr. King’s hospital records was notdone to bypass the procedures required under section 254(3) of the Criminal Code for a blood sample.

Rather, the police havingexhausted one option, employed another. [27] In R v Smith, 2011 ABCA 136, [2011] 10 WWR 67 leave to appeal to the Supreme Court of Canada refused, [2011] SCCA314, the accused had undergone blood-alcohol testing at a hospital. The Crown sought to tender those hospital records as evidence undersubsection 30(1). The Court held that the Crown has the option of entering evidence in a trial under

section 30 even though there may beother methods of having that same evidence admitted. The Court stated as follows at paragraphs 25 - 30: 25 The mere fact that the results of blood alcohol testing can be admitted into evidence by methods other than s. 30 of the CEA doesnot mean that s. 30 cannot be used, so long as the prerequisites for its application have been made out: see s. 30(11), CEA. In some casesoral evidence of the reliability of test results has been received: see R. v. Redmond (1990), (ON CA), 54 C.C.C. (3d)273 (Ont. C.A.).

But it does not follow that type of evidence is mandatory. 26 Similarly, simply because the Criminal Code provides another route to the admission of hearsay evidence in a criminal proceeding,also an exception to the hearsay rule, does not compel the use of that option: see R. v. L. (D.O.), (SCC), [1993] 4 S.C.R.419 at para. 53. Indeed, that option expressly applies in circumstances in which s. 30(1) is not available, and vice versa.

It arises underthe provisions of s. 254 of the Criminal Code, which provides in part: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person's blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person's blood; ...

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medicalpractitioner who is satisfied that taking the samples would not endanger the person's life or health. 27 This procedure allows the harvesting of evidence for potential use in criminal proceedings: see, for example, R. v. Caruth, 2009ABCA 342. In comparison, s. 30(10) of the CEA expressly excludes from admission under s. 30(1) records created in the course of aninvestigation, inquiry or in relation to certain aspects of a legal proceeding.

In other words, the use of s. 30(1) is limited to recordscreated for purposes other than the legal proceeding into which their entry is eventually sought, such as hospital records created in thecourse of the medical treatment of a defendant, as here. It cannot be used to harvest evidence in relation to a legal proceeding, whereas s.254 can only be used to do so. 28 Any policy argument raised that the safeguards available to a defendant under s. 254, which do not exist in relation to s. 30(1),compel the use of the former procedure simply does not apply. Each procedure bears safeguards.

Section 30(9) of the CEA offers anaccused the safeguard of being able to apply for leave to cross-examine the maker of the contents of a record entered pursuant to s.30(1). Section 258(1)(

d) provides that the defendant can, in certain circumstances, obtain an additional sample of his or her blood taken

at the same time as the analyzed sample for the purpose of having an independent analysis done. However, that safeguard comes at a price. Evidence obtained pursuant to the s. 258(1)(

d) route may be conclusive proof, i.e. it is much harder to refute this evidence of blood alcohol level than that tendered under s. 30(1) of the CEA. Section 258(1)(d.01) provides that the accuracy of the blood alcohol analysis so performed cannot be challenged by evidence of the defendant's alcohol consumption, the rate at which the alcohol so consumed would have been absorbed and eliminated, or a calculation based on that evidence of what the concentration of alcohol in the defendant's blood would have been at the time when the offence was alleged to have been committed.

By comparison, evidence of this kind may be tendered to challenge the reliability of a blood alcohol analysis entered into evidence under s. 30(1) of the CEA. 29 In any event, the defence did not advance a Charter challenge to the validity of s. 30(1) of the CEA on the basis that it arguably provides fewer safeguards to a defendant than does the s. 254 procedure. Such a challenge would be required to advance that argument. 30 In

summary, the Crown always has the option to enter evidence under s. 30(1) of the CEA although the evidence so entered is not "conclusive" and may be attacked in ways not available under the s. 254 route. The Crown will presumably choose to use s. 30(1) where evidence was not obtained under the s. 254 procedure, even though a criminal charge may have been anticipated at the time, where the taking of a blood sample during active treatment would endanger the defendant's life and health.

Where, as here, the defendant required immediate medical attention throughout the three hours following the accident, no opportunity may present itself to obtain a blood sample under s. 254 of the Criminal Code . Distracting the medical personnel treating a seriously injured defendant with a request to gather evidence could endanger health. Taking time and attention away from the administration of emergency medical treatment to actually harvest the evidence may do so as well. In this case, it was not the time to conduct a police investigation while Ms.

Smith was being treated to save her life. [ 28 ] When Constable LeBlanc arrested Mr. King at 1:17 a.m. in the x-ray room, Mr. King was actively receiving medical care. A nurse insisted that Constable LeBlanc leave the x-ray room as he was distracting the medical personnel who were treating Mr. King. After reading a police caution to Mr. King at 1:20 a.m., Constable LeBlanc quite rightly came to the conclusion that this was not the time to continue with his investigation and in particular the making of a blood demand of Mr. King. The subsequent use of the Production Order was an option available to the police.

I find that there is no prejudice to Mr. King as a result of the use of the Production Order. [ 29 ] The application to set aside the Production Order is dismissed. Whether the biochemistry report respecting Mr. King (Exhibit P-3) should be admitted into evidence at the trial will be left to be considered at the trial proper . ____________________________________ M. Hinds, J Appendix “A” Business records to be admitted in evidence

(1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this

section in the legal proceeding on production of the record.

(2) Where a record made in the usual and ordinary course of business does not contain information in respect of a matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist.

(3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy ’ s authenticity and that is made by the person who made the copy, is admissible in evidence under this

section in the same manner as if it were the original of the record if each document is (

a) an affidavit of each of those persons sworn before a commissioner or other person authorized to take affidavits; or (

b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state.

(4) Where production of any record or of a copy of any record described in subsection (1) or (2) would not convey to the court the information contained in the record by reason of its having been kept in a form that requires explanation, a transcript of the explanation of the record or copy prepared by a person qualified to make the explanation is admissible in evidence under this

section in the same manner as if it were the original of the record if it is accompanied by a document that sets out the person ’ s qualifications to make the explanation, attests to the accuracy of the explanation, and is (

a) an affidavit of that person sworn before a commissioner or other person authorized to take affidavits; or (

b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state.

(5) Where part only of a record is produced under this

section by any party, the court may examine any other part of the record and direct that, together with the part of the record previously so produced, the whole or any part of the other part thereof be produced by that party as the record produced by him.

(6) For the purpose of determining whether any provision of this

section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record.

(7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this

section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party.

(8) Where evidence is offered by affidavit under this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.

(9) Subject to

section 4, any person who has or may reasonably be expected to have knowledge of the making or contents of any record produced or received in evidence under this

section may, with leave of the court, be examined or cross-examined thereon by any party to the legal proceeding.

(10) Nothing in this

section renders admissible in evidence in any legal proceeding (

a) such part of any record as is proved to be (

i) a record made in the course of an investigation or inquiry, (ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding, (iii) a record in respect of the production of which any privilege exists and is claimed, or (iv) a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record;

(

b) any record the production of which would be contrary to public policy; or (

c) any transcript or recording of evidence taken in the course of another legal proceeding.

(11) The provisions of this

section shall be deemed to be in addition to and not in derogation of (

a) any other provision of this or any other Act of Parliament respecting the admissibility in evidence of any record or the proof of any matter; or (

b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.

(12) In this section, “ business ” means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government; “ copy ” , in relation to any record, includes a print, whether enlarged or not, from a photographic film of the record, and “ photographic film ” includes a photographic plate, microphotographic film or photostatic negative; “ court ” means the court, judge, arbitrator or person before whom a legal proceeding is held or taken; “ legal proceeding ” means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration; “ record ” includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this

section pursuant to subsection (3) or (4).