R. v. Schneider, 2013 ONCJ 762

COURT FILE No.: Sudbury 120477 DATE: 2013·06·26 Citation: R. v. Schneider , 2013 ONCJ 762 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — LARRY SCHNEIDER Before Justice Andrew L. Buttazzoni Heard on February 27 and 28, 2013 Reasons for Judgment released on June 26, 2013 Colleen Hepburn ........................................................................................................ for the Crown Murray H.

Shore ............................................................................ for the accused Larry Schneider BUTTAZZONI J.: [ 1 ] The accused has been charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit contrary to section 253(1) (

b) of the Criminal Code of Canada . The offence is alleged to have taken place on May 4, 2012. The accused has brought an application for Charter relief on the grounds that his rights as protected by ss. 7 and 8 of the Charter have been violated.

The accused seeks exclusion of all evidence obtained in violation of his Charter protected interests, specifically, the vial of blood seized pursuant to a search warrant and the results of the analysis of that blood. [ 2 ] The trial commenced with a voir dire to determine whether there has been a violation of the applicant’s Charter rights and if so the appropriate remedy. The onus is on the accused on a balance of probabilities.

The only witness to testify in this proceeding was the investigating officer, Constable Kewaquado. 1: EVIDENCE 1:1 Evidence of Constable Kewaquado [ 3 ] On May 4, 2012 at 5:32 p.m. he was dispatched to a single motor vehicle accident involving an ATV. He arrived at 5:46 p.m. and observed the accused motionless on his back without a helmet on his head. The accused was being assisted by paramedics. He observed dried blood on the accused’s chin and on the corner of his mouth. He was advised by fellow riders that the accused experienced brake failure.

At 5:55 p.m. he entered the ambulance where the accused was being treated. He detected the odour of alcohol. He noted that the accused’s eyes were bloodshot and red rimmed. The officer asked the accused when he last consumed alcohol and the accused indicated “a couple of hours ago”. After speaking to witnesses who were at the scene and based on his own observations, the officer came to the conclusion that the accident was caused by the accused having operated his ATV at an excessive speed on an oil-covered gravel roadway.

Before leaving the scene he advises his superior officer that he is investigating a “suspected” drinking and driving offence. [ 4 ] The officer left the accident scene at 6:02 p.m. arriving at the local hospital at 6:20 p.m. He was accompanied to the accused’s room by nursing staff. At 6:32 p.m. the officer was advised that he could enter the accused’s room. Upon entering the room he could detect the odour of alcohol coming from the accused. At 6:33 p.m. the officer arrested the accused for impaired driving - not over 80.

He advised the accused of his rights to counsel, provided the standard caution and made a demand of the accused that he provide a sample of his breath into an approved breathalyser machine. At this point the accused was immobilized on a backboard with a

neck brace on. The accused was eventually hooked up to an intravenous unit. The officer advised the accused that he had concernsabout his ability to comply with the demand. The accused did not reply. The officer had no reason to think that the accused would notco-operate. [5] Officer Kewaquado remained in the company of the accused after the arrest. At 6:50 p.m. the lab technician Kelly Kingentered the room and took several vials of blood from the accused. The officer had no conversation with Ms. King. [6] At some point between 6:40 p.m. and 7:01 p.m. the accused’s wife attended at the hospital.

The officer observed her tobe upset. [7] At 7:01 p.m. Dr. Hongzinger attended and directed the officer to leave the room while he examined the accused. Theofficer waited behind the hospital bed curtain while the doctor conducted his examination. By 7:15 p.m. the doctor had completed hisexamination. The officer asked Dr. Hongzinger if the accused would be able to provide a breath sample. According to the officer thedoctor said, “We wouldn’t exactly know if he could do it until he tried it”. The officer thought the doctor was being flippant and that hisanswer was ambiguous.

Therefore, based on his observations of the accused in the hospital and the doctor’s ambiguous answer heconcluded that the accused would not be able to provide a breath sample. [8] At 7:25 p.m. the officer made a demand of the accused that he provide a sample of his blood pursuant to section254(3)(a)(ii) of the Criminal Code. [9] At 7:30 p.m. the officer released the accused unconditionally. The accused was not charged with any offence and theofficer decided not to follow through with the blood demand.

He thought it would be less intrusive if he simply obtained a warrant toseize one of the vials of the accused’s blood. He was mindful that the accused’s spouse was still upset. At the same time he realized itwould be more work for him to get a search warrant. [10] At 7:34 p.m. the officer attended at the hospital lab and spoke to technician Kelly King. At his request she produced avial of the accused’s blood. The officer affixed a CFS seal to the vial. The officer testified that he told the technician that the bloodcould be used for medical purposes.

He also told her that he would be obtaining a warrant in order to seize the vial of blood. [11] The vial of blood was marked for police purposes and placed on a shelf in the cooler specifically dedicated for OPP use. At 7:48 p.m. the officer left the hospital. [12] On May 14, 2012 the officer obtained a warrant pursuant to

section 487 of the Criminal Code. Constable Kewaquadowas the affiant for the “Information to Obtain”, hereinafter referred to as the “ITO”. Under authority of the search warrant theinvestigating officer seized the vial previously secured with the CFS seal and then sent it to the Center of Forensic Sciences for analysis.The warrant was sought on the basis that the officer had reasonable grounds to believe that an offence contrary to s. 253(1)(

b) of theCriminal Code of Canada had been committed as opposed to impaired driving (the offence for which the accused had originally beenarrested). [13] As a result of the analysis of the accused’s blood he was charged with an offence contrary to section 253 (1)(

b) of theCriminal Code, commonly referred to as “an over 80 offence” . [14] The applicant submits that the investigating officer disregarded several of his Charter protected rights. He argues : 1) That the officer did not have reasonable grounds to arrest him. 2) That the unlawful arrest was followed by two unlawful demands and an arbitrary detention in the hospital. 3) That the officer violated his personal, spatial and informational privacy interests while he was being unlawfully detained.

Theseviolations enabled the officer to be present while blood was taken from the accused for medical purposes. 4) That the officer unlawfully seized of a vial of the accused’s blood by affixing a CFS seal to it. 5) That the Justice of the Peace would not have had grounds to believe that the offence of “over 80” had been committed if theaffiant had made full and frank disclosure. 6) That given the seriousness of the multiple breaches the evidence obtained by virtue of the search warrant should be excludednotwithstanding that it is reliable and necessary for an adjudication of this case on its merits. [15] Not surprisingly, the Crown takes a contrary view.

The Crown advances a more benevolent theme to explain much of theinvestigating officer’s conduct. Hopefully, without oversimplifying, the Crown submits that the actions of the investigating officer werenot unlawful. To the contrary, his decisions were motivated by a desire to implement the least intrusive investigative procedures in orderto preserve the accused’s privacy interests. The Crown submits that even if the demands were unlawful no evidence was obtained as aconsequence thereof. The evidence in question was seized pursuant to a search warrant whose validity has not been undermined.

Anylack of disclosure by the investigating officer to the Justice of the Peace related to the officer’s speculative opinion regarding the causeof the accident and does not affect the validity of the warrant. [16] For the reasons that follow I find that there were in fact serious breaches of the accused’s ss. 8 and 9 Charter protectedrights and that the evidence seized as a result of these breaches should be excluded. 2: LAWFULLNESS OF ORIGINAL ARREST [17] I have found the Court of Appeal decision of R. v. Bush, [ 2010 ONCA 554 , 2010]O.J. No.3453 helpful in

summarizing the relevant legal principles that must be considered. At paras. 36-38, Durno J., writing for the court, stated: [36] Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver hasalcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the CriminalCode.

At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability tooperate a motor vehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legallimit. [37] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.

Section 254(3) of the CriminalCode authorizes peace officers to demand Intoxilyzer breath samples provided the officer “has reasonable and probable grounds tobelieve that a person is committing or at any time within the preceding three hours has committed” the offence of impaired operation ordriving ‘over 80.’ (Emphasis added.) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to aprima face case: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23. [38] Reasonable and probable grounds have both a subjective and an objective component.

The subjective component requires theofficer to have an honest belief the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 atpara. 51. The officer’s belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001] O.J. No. 377(C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able toconclude that there were indeed reasonable and probable grounds for the arrest: R. v.

Storrey, (SCC), [1990] 1 S.C.R.241 at p. 250. [18] At paras. 44-48 Durno J. makes the further observations: [44] Doherty J.A. continues in Golub at para. 21: In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. Theofficer must take into account all information available to him and is entitled to disregard only information which he has good reason tobelieve is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), (SCC), 48C.C.C. (2d) 34 at 56 (S.C.C.); R. v.

Hall (1995), (ON CA), 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v. Proulx (1993), (QC CA), 81 C.C.C. (3d) 48 at 51 (Que. C.A.). [45] On a subsequent occasion, Doherty J.A. found police in a drinking and driving investigation were involved in making quick butinformed decisions whether there were reasonable and probable grounds: see R. v. Smith (1996), (ON CA), 28 O.R.(3d) 75 (C.A.). [46] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence.

Neither must it be so diluted as to threatenindividual freedom: Censoni at para. 43. [47] There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probablegrounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution provesany degree of impairment from slight to great: R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90 (C.A.), aff’d (SCC), [1994] 2 S.C.R. 478.

Slight impairment to drive relates to a reduced ability in some measure to perform a complexmotor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of theroad: Censoni at para. 47. [48] The test is whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was evenslightly impaired by the consumption of alcohol: see R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont.

C.A.),aff’d (SCC), [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para. 17. [19] Applying the foregoing principles to the facts of this case, I come to the conclusion that Constable Kewaquado did nothave reasonable and probable grounds to arrest the accused and request that he provide a sample of his breath into an approvedbreathalyser machine. [20] The officer identified three factors that led him to believe he had reasonable grounds to arrest the accused for impaireddriving: 1) the odour of alcohol emanating from the accused; 2) the accused’s eyes were red rimmed and bloodshot; and 3) that there was a single motor vehicle collision. [21] As noted by Durno J., in R v.

Bush, supra at paras. 54 and 57, the existence of reasonable and probable grounds is a factbased exercise dependent upon all the circumstances of the case. The fact that an accident occurred must be taken into account by theofficer along with the other evidence at the scene in determining whether there are reasonable and probable grounds to arrest forimpaired driving. In some cases evidence of consumption plus an unexplained accident may provide those grounds although that maynot always be the case.

The fact that the accident may be responsible for the observed indicia when they could have also been caused bythe consumption of alcohol does not mean that the officer must disregard those indicia. The officer draws upon his personal andprofessional experience in evaluating the circumstances in order to determine if reasonable grounds exist. [22] During his evidence in chief the officer acknowledged that in the early stages of the investigation he came to the

conclusion that the accident was caused, not by the consumption of alcohol, but as a result of the ATV being operated by the accused at an excessive rate of speed on an oil-covered gravel roadway. He relied on his experience, personal observations and information received from witnesses at the scene in order to come to this conclusion. The Crown was critical of the officer’s conclusion preferring to describe his conclusion as a speculative opinion. With all due respect I would disagree. Constable Kewaquado is an experienced officer.

Based on his on-site investigation, an experienced officer initially came to the conclusion that alcohol was not a factor in the accident. He would have been equally entitled to come to the opposite conclusion. He did not do so. Neither opinion would have been speculative unless it had been proffered without considering the evidence obtained during his investigation.

While testifying in chief, Constable Kewaquado, on more than one occasion, steadfastly maintained the certainty of his opinion based on a consideration of what he learned through his investigation. [ 23 ] During the officer’s cross-examination, however, the Crown attempted to undermine his conclusion and eventually the certainty of his opinion began to waver in response to the Crown’s suggestive cross-examination.

While I do not in any way suggest any impropriety on the part of the Crown in cross-examination, the use of highly suggestive questions diminished the reliability and credibility of the officer’s subsequent answers. [ 24 ] Of significance in this voir dire is that the investigating officer, typically a Crown witness, was called in chief by the accused. The accused was obliged to call the officer because he bore the onus in this Charter application. Accordingly, the Crown was entitled to cross-examine him through the use of leading questions.

At one point the Crown asked the investigating officer why did not include his conclusion regarding the cause of the accident in the ITO. The officer testified that he did not do so because he did not have a statement from one of the witnesses, Mr. Haan outlining the exact details of the accident. Obviously not content with this answer the Crown then suggested to the officer that the reason he did not include it was because he too realized that his opinion regarding the cause of the accident was mere speculation. The officer at that point agreed with the extremely leading question.

Given the manner in which this evidence was elicited, I put little or no weight to the officer’s tacit agreement with the Crown’s highly suggestive question on a very important issue. [ 25 ] Watt J. in the case of R. v. Clancey , [1992] O.J. No. 3968 at para. 49 , makes the following instructive observation regarding use of leading questions with friendly witnesses: …The examination-in-chief shall commence as in the usual course, subject to re-application upon a proper evidentiary foundation.

In cross-examination, however, Crown counsel ought be mindful of the observations of Bergman, J.A. in Deacon, supra, at p. 319 C.C.C., which, varied to suit the present circumstances, are these: "Where a witness called by the accused shows such a bias in favour of the prosecutor ..., it should be apparent to Crown counsel that putting words in the witness's mouth is not conducive to eliciting the truth or impressing the judge." [ 26 ] At this point in the officer’s evidence two things became abundantly clear to the Court.

The officer finally understood what the Crown was getting at and decided to tell her exactly what she wanted to hear and that the omission of this opinion from the ITO was not based on the officer’s genuinely held belief that his opinion was mere speculation. [ 27 ] To the contrary, I prefer the officer’s original evidence in chief that he formed the reasonable conclusion that the accident was not alcohol related and that the non-disclosure in the ITO was due to his belief that he needed a detailed statement from Mr. Haan. Accordingly, his grounds for arrest must be assessed in light of this opinion.

At the time of the accused’s arrest this was no longer an investigation of an unexplained accident. [ 28 ] Thus, the remaining factors, an odour of alcohol and red-rimmed/bloodshot eyes on an injured driver do not objectively provide reasonable grounds to arrest for impaired driving. The arrest was therefore unlawful. [ 29 ] Before leaving this issue I would note as well the officer’s evidence that when he left the accident scene at 6:02 p.m. he only had a “suspicion” that a drinking and driving offence had been committed – not reasonable grounds for such a belief. I would agree with that assessment.

The only additional information acquired by the officer after leaving the accident scene and the time of arrest (6:33 p.m.), was the observation that the accused still had the odour of alcohol on his breath at the hospital. The officer testified that based on his experience and training the presence of the odour of alcohol on the accused’s breath at the hospital was indicative of higher alcohol consumption. [ 30 ] The officer’s observation of the odour of alcohol at the hospital does not elevate his suspicion to reasonable and probable grounds.

The intensity or degree of an odour of alcohol is not capable of being considered for establishing the relative amount or degree of alcohol intake or impairment to drive or have lawful care or control of a motor vehicle. See, R. v. Tavone , [2007]O.J. No. 3073, (S.C.) at para. 11 ; R.v. Kumric , [2006] O.J. No. 4886 (S.C.) at para. 15 . [ 31 ] I also note that the accused was never charged with impaired driving. In his cross-examination the investigating officer testified that he never charged the accused with impaired driving because he did not have the grounds to do so.

I cannot understand how an officer can develop reasonable grounds to believe that a person has committed the offence of impaired driving, subsequently arrest that person for impaired driving but then come to the conclusion that he had no grounds to charge the person. [ 32 ] The officer had a suspicion that alcohol might have been involved, nothing more. This clearly would have been a proper case for an ASD demand. Because the officer did not have reasonable grounds to arrest the accused, the subsequent breath and blood demands were also unlawful.

The officer’s decision to pursue a breath demand does require some further analysis. 3: THE ABANDONMENT OF THE BREATH DEMAND AND THE PURSUIT OF A BLOOD DEMAND

[33] At 7:25 p.m. the officer made a blood demand of the accused pursuant to s. 254(3)(a)(ii) of the Code. [34] A police officer may rely upon this subsection of the Criminal Code in circumstances where the officer “has reasonablegrounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would beimpractical to obtain a sample of breath.” In this case, I come to the conclusion that the officer did not have such reasonable grounds. [35] The officer decided to make a blood demand based on the following factors:

a) the doctor’s flippant and ambiguous answer (i.e. “we wouldn’t exactly know if he could do it until he tried it”);

b) the fact that the accused was hooked up to an intravenous;

c) the accused was wearing a neck brace;

d) the accused was immobilized on his back;

e) the accused had limited mobility in his neck. [36] The doctor did not testify at this hearing. While the officer may have subjectively believed that the doctor’s answer wasambiguous, I find that, when viewed objectively, there was nothing ambiguous about it. Clearly the doctor was leaving it open to theofficer to have the accused try to provide a sample of his breath. There was no evidence suggesting that the doctor told him that theaccused would be incapable of providing a sample or that the medical constraints made it impractical to provide a breath sample.

Notably, the officer did not follow up with any other questions in order to remove the ambiguity that existed in his mind. Beforeembarking on a more invasive investigative technique, the officer should have attempted to clarify the doctor’s answer if he found itambiguous. While the officer may have perceived the answer to be flippant, there was nothing ambiguous about it.

Even if the arresthad been lawful, and I have found that it was not, the officer did not have the requisite reasonable grounds required to pursue a blooddemand. 4: WAS THERE A VIOLATION OF THE ACCUSED’S PERSONAL, SPATIAL OR INFORMATIONAL PRIVACYINTERESTS [37] In R. v. Dyment, (SCC), [1988] S.C.J. No. 82. at paragraph 15, La Forest J., writing for the majorityreaffirmed that the Charter was a purposive document to be construed as such and interpreted generously.

He further recognized, “that amajor, though not necessarily the only, purpose of the constitutional protection against unreasonable search and seizure under s. 8 is theprotection of the privacy of the individual.” [38] It should also be noted that s. 8 does not merely prohibit unreasonable searches and seizures, it goes further andguarantees the right to be secure against unreasonable search and seizure. [See Dyment, supra at para. 18.] [39] La Forest J. recognized that

section 8 of the Charter serves to protect personal, spatial and informational privacyconcerns. With respect to informational privacy, La Forest J., at paragraph 22 stated: Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As theTask Force put it (p. 13): "This notion of privacy derives from the assumption that all information about a person is in a fundamentalway his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information aboutoneself is extremely important.

We may, for one reason or another, wish or be compelled to reveal such information, but situationsabound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, andrestricted to the purposes for which it is divulged, must be [page430] protected.

Governments at all levels have in recent years recognizedthis and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see,for example, the Privacy Act, S.C. 1980-81-82-83, c. 111. [40] At paragraph 29, La Forest J. makes it clear that Courts must strive to ensure that privacy interests of vulnerableindividuals in a hospital setting are not compromised by virtue of loose agreements between hospital staff and law enforcement officials : … This is obviously necessary if one considers the vulnerability of the individual in such circumstances.

He is forced to revealinformation of a most intimate character and to permit invasions of his body if he is to protect his life or health. Recent trends in healthcare exacerbate the problems relating to privacy in the medical context, particularly in light of the health-team approach in aninstitutional setting and modern health information systems. If the health-team approach gives a patient easy access to a wide range ofmedical services, it inevitably results in the fragmentation of the classical doctor-patient relationship among a team of medical and para-medical personnel.

The dehumanization that can result has led some hospitals in the United States to appoint an ombudsman for patients.The Report of the Commission of Inquiry into the Confidentiality of Health Information (The Krever Commission), 1980, has drawnattention to the problem in the law enforcement context in the following passage, vol. 2, at p. 91: ... the primary concern of physicians, hospitals, their employees and other health-care providers must be the care of their patients.

It isnot an unreasonable assumption to make that persons in need of health care might, in some circum-stances, be deterred from seeking it ifthey believed that physicians, hospital employees and other health-care providers were obliged to disclose confidential healthinformation to the police in those circumstances. A free exchange of in-formation between physicians and hospitals and the policeshould not be encouraged or permitted.

Certainly physicians, hospital employees and other health-care workers ought not to be [page434]made part of the law enforcement machinery of the state. [Emphasis added.] Under these circumstances, the demands for the protection of personal privacy become more insistent, a truth that has been recognizedby governments. I look upon the Hospitals Act and its regulations not so much as justifying the need for privacy in this case but rather asa testimony that such protection is required.

Under these circumstances, the courts must be especially alert to prevent undue incursionsinto the private lives of individuals by loose arrangements between hospital personnel and law enforcement officers. The Charter, it will

be remembered, guarantees the right to be secure against unreasonable searches and seizures. [41] This same approach was again followed by our Supreme Court in R. v. Colarusso, (SCC), [1994] S.C.J.No. 2. At paragraph 70, the Court stated: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, teaches us that s. 8, like other Charter rights, mustbe broadly and liberally construed to effect its purpose. And that purpose, it identified, is to secure the citizen's right to a reasonableexpectation of privacy against governmental encroachments.

The need for privacy can vary with the nature of the matter sought to beprotected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion. That physicalintegrity, including bodily fluids, ranks high among the matters receiving constitutional protection, there is no doubt; see R. v.Pohoretsky, (SCC), [1987] 1 S.C.R. 945; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417. Moreover,hospitals have been identified as specific areas of concern in the protection of privacy, given the vulnerability of individuals seekingmedical treatment.

The requirement for seizing items for the purpose of criminal law enforcement has also been set at a high level; notsurprisingly -- it involves the freedom of the individual. Absent exigent circumstances, there is a requirement of prior authorization by ajudicial officer as a precondition to a valid seizure for the criminal law purposes; see Hunter, supra. And the minimum requirement forsuch authorization is that the judicial officer be satisfied that there are reasonable and probable grounds that an offence has beencommitted and that the search will afford evidence of that offence.

This high threshold, together with the general approach set forth inHunter, at p. 155, that the function of the Charter "is to provide . . . for the unremitting protection of individual rights and liberties"sought to be protected, is the proper perspective from which the situation in the present case must be assessed. [42] With respect to the interaction between hospital staff and police, the Court at paragraph 79, made the followingobservation: As an aside, I cannot, however, overstate my concern that such actions may reflect the type of unwelcome complicity between the policeand hospital about which I wrote in Dyment, supra.

The appellant in this case had already been charged with a criminal offence and, assuch, was aware that the results of his treatment might ultimately be used to incriminate him. The presence of the police officer in theemergency room in such circumstances can only serve to undermine the physician-patient relationship, as the accused would likelyinterpret these facts as a sign that the medical staff was operating in conjunction with the police investigation.

Such a scenario couldhave catastrophic results if an accused resisted essential treatment for fear it might incriminate him in future criminal proceedings.Although I have not categorized the assistance of the police officer at this early stage as a seizure, I would emphasize that suchcomplicity is at best unwise and should be avoided at all times unless the assistance of the police officer is necessary in order to giveessential medical treatment because of exigent circumstances.

In this situation, the presence of the officer was unwarranted as thehospital staff could have obtained the sample themselves.(Emphasis added) [43] Based on the record I have before me, I conclude there has been a violation of the accused’s Charter protected spatial andinformational privacy interests. Firstly I am concerned that the officer was so casually allowed entry into the area where the accusedwas being treated without any apparent regard for his personal privacy concerns. When the officer was given this unrestricted access byhospital personnel the accused had not yet been placed under arrest.

According to the investigating officer he was allowed to be in thepresence of the accused at all times except for that brief period when he was directed by the treating physician to leave the room. Theofficer then stood behind a curtain which I assume would provide for nothing more than a modicum of privacy to the accused. Obviously the officer was still in a position where he could likely overhear confidential discussions between patient and doctor.

Oncethe doctor completed his examination the officer once again remained in the presence of the accused. [44] No medical or hospital personnel testified at this proceeding. I have not received any information regarding hospitalprotocol regarding patient privacy during a police investigation. [45] What is clear from the evidence is that upon arrival at the hospital the officer only had a suspicion that a drinking anddriving offence had been committed. Hospital personnel brought him to the accused’s room and allowed the officer entry into the roomwhere the accused was receiving medical attention.

This enabled the officer to pursue his investigation, which ultimately resulted in anunlawful arrest at 6:33 p.m. The invitation into the accused’s room followed by the unlawful arrest and subsequent breath demand gavethe officer the opportunity to eventually observe the taking of the vials of blood from the accused. [46] This constellation of events in my view constitutes an arbitrary detention and a violation of the accused’s s. 9 Charterprotected interests. Additionally, the officer’s actions enabled him to witness a medical procedure that involved the taking of blood fromthe accused. As was the case in R. v.

Dersch, supra, the accused had a reasonable expectation of privacy in respect of his personalmedical information while receiving treatment in the hospital. This was a seizure of highly personal and private medical informationregarding the accused. I consider this a serious violation of the accused’s s. 8 Charter guarantee to be secure from an unreasonableseizure. The information was obtained without a warrant, rendering the search/seizure by the police prima facie unreasonable, and theCrown has not satisfied the burden of rebutting this presumption of unreasonableness.

A common law warrantless search incident toarrest is only lawful and in compliance with s. 8 of the Charter where the predicate arrest is itself lawful: R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 13. [47] There is no doubt that there may be instances where there will be nothing inappropriate as a result of doctors andhospitals releasing neutral medical information, such as the presence of the patient in the hospital.

I do not consider the medicalinformation disclosed in this case to be of a neutral quality. [48] Before leaving this topic, I do wish to make an observation regarding the Crown’s attempt to validate the officer’scontinuing presence in the accused’s hospital room. The Crown asked the officer why he remained in the room while Mrs. Schneiderwas present. He replied that it was to maintain continuity of the accused. The Crown then suggested to him that one of the reasons heremained in the room was to ensure that the accused’s spouse did not provide alcohol to the accused.

The officer agreed with thesuggestion. [49] Given the very leading the nature of the Crown’s question on a very important issue, I am inclined to give no weight to

this answer. The manner in which this evidence was elicited convinced me that once again, the officer would say whatever he thoughtthe Crown wanted to hear. This portion of the officer’s evidence did absolutely nothing to enhance his credibility. I have no doubt thatthe first time the officer turned his mind to the possibility of Mrs. Schneider providing alcohol to the accused, who was being physicallyconstrained and receiving medical treatment, occurred when the Crown made that suggestion to him in cross-examination.

It isnoteworthy that the officer chose to remain with the accused after his arrest at 6:33 p.m. and Mrs. Schneider was nowhere to be seen atthat point. Clearly, the investigating officer was intent on remaining in the presence of the accused regardless of Mrs. Schneider’spresence. 5: DID AFFIXING A CFS SEAL TO THE VIAL CONTAINING THE ACCUSED’S BLOOD CONSTITUTE ASEIZURE [50] Counsel for the accused, Mr. Shore has argued that the officer’s conduct of affixing a CFS seal to one of the vials ofblood amounted to a seizure. Ms. Hepburn on behalf of the Crown submits that based on the Court of Appeal decision in R. v.

Gettins,[2003] O.J. No. 4758 (Ont.C.A.) the placing of such a seal does not amount to seizure. [51] While I agree with the Court’s decision in Gettins, it was significant in Gettins that the vials remained under the control ofthe hospital in the event that they were needed for medical purposes. In our case, the evidentiary record does not support such aconclusion. [52] The officer testified that after affixing the CFS seal to a vial of the accused’s blood he told the lab technician that, ifneeded, the blood could be used for medical purposes. I have reason to doubt this evidence.

The contents of the ITO belie the evidencehe gave at trial. [53] At paragraph 26 of the ITO the officer swore : That the informant received a red capped blood vial from the medical lab technician that had a label affixed to it. The label indicated thedate, May 4, 2012, hospital patient name, Schneider, Larry (DOB: 21 October 1973), and doctor’s name, Dr. Hongzinger. [54] Then at paragraph 27 of the ITO under the heading “Grounds to Believe that the Thing(

s) to be Seized is/are at thePlace to be Searched” the officer swore : That the informant affixed a Center of Forensic Science’s seal #2NF39886 over the red cap of the vial. The informant then returned thevial back to Kelly King who then placed the vial on the bottom shelf of the walk in fridge of the Core Laboratory for continuitypurposes.

The Core Laboratory is located in room # 3801 of the West Parry Sound Health Center, 6 Albert St., Parry Sound, Ontario.King then labelled the vial for police use and that it would be kept in the fridge for a length of 30 days. (Emphasis added) [55] During the voir dire the officer also confirmed that the vial was placed in the fridge on a shelf marked specifically forOPP use. The ITO is glaringly silent regarding the officer advising the lab technician that the blood could be used for medical purposesif necessary. [56] The ITO was sworn on May 14, 2012 – ten days after the alleged offence.

It is a statutory prerequisite to the issuance of asearch warrant that the informant has to satisfy the Justice of the Peace that there are reasonable grounds to believe that the evidencesought is in fact at the location to be searched. Nowhere in the ITO does the officer indicate that he called the hospital to ascertain if thevial of blood was still available or if it had been used for medical purposes.

The absence of such an inquiry combined with the omissionfrom the ITO that the lab tech was advised that the blood could be used for medical purposes leads me to reject the officer’s viva voceevidence. [57] When I consider the entire chronology surrounding the storage of the vial, I find that this case is distinguishable fromGettins, supra.

The affixing of the CFS seal to the vial of blood, its subsequent designation “for police use”, its placement on a dedicatedOPP shelf in the fridge for 30 days and the failure to advise that the blood could be used for medical purposes, effectively resulted in anunlawful seizure by the police officer. This seizure was warrantless and presumptively unlawful. Based on the evidence before me Ifind that the hospital no longer had control of the vial of blood for medical purposes. 6: VALIDITY OF THE SEARCH WARRANT [58] Mr.

Shore, on behalf of the accused, challenges the validity of the search warrant on both a facial and sub-facial level. The facial validity is challenged on the basis that the ITO does not provide reasonable grounds to believe that the offence of “over 80had been committed”. In other words, on the face of the affidavit material, the contents of the affidavit do not satisfy the statutoryrequirements for the issuance of a search warrant. The sub-facial challenge to the affidavit goes behind the form of the affidavit to attackthe reliability of its content.

The sub-facial challenge is premised on the applicant’s assertion that the investigating officer failed todisclose material information to the Justice of the Peace and that misleading information should be excised from the ITO. [59] The Crown on the other hand, submits that any purported element of non-disclosure or misrepresentation was not relevantto the issuance of the search warrant and that the subsequent search and seizure was thereby lawful. [60] At the risk of being redundant it is noteworthy that prior to the application for a search warrant this investigation wasfocused on the accused having committed the offence of impaired driving.

After all, he had been arrested for impaired driving. With theapplication for a search warrant the accused became a suspect in an “over 80” offence. [61] The minimum requirements for the issuance of a search warrant was discussed by Fish J. in R. v. Morrelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 39: 39 Under the Charter, before a search can be conducted, the police must provide "reasonable and probable grounds, established uponoath, to believe 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). These distinct and cumulative requirements together form part of the"minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168). [62] The investigating officer’s grounds for believing that an “over 80” offence had been committed are set out in paragraphs14 to 23 of the ITO. I come to the conclusion that the warrant, as presented to the Justice of the Peace, survives the applicant’s challengeto its facial validity.

The information disclosed by the investigating officer which supports this conclusion includes: 1) That the accused was involved in an unexplained single motor vehicle accident while operating an ATV. 2) The officer detected an odour of alcohol on the breath of the accused both at the scene and later at the hospital. 3) The officer also noted that the accused’s eyes appeared red rimmed and bloodshot. 4) The officer’s opinion, based on his experience and training investigating similar type incidents, that the presence on theaccused of an odour of alcohol at the hospital was indicative of higher alcohol consumption. [63] In my examination of the sub-facial validity of the warrant, I am guided by the principles set out by the Supreme Court ofCanada in R. v.

Kokesch , (SCC), [1990] S.C.J. No. 117 , R. v. Araujo, 2000 SCC 65 , [2000] S.C.J. No. 65, and R. v. Grant, (SCC), [1993] S.C.J. No. 98. [64] In Araujo, supra, the Court set out the approach to be taken by a judge when reviewing a judicially authorized warrant. Atparagraph 51, the Court stated: 51 The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearingof the application [page1017] for the wiretap.

This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, atp. 1452: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. [Emphasis added]. [65] In R. v. Grant the Court confirmed that the reviewing judge should excise from an ITO information obtained as aconsequence of a Charter violation. At para. 50 the Court stated: 50 In R. v. Kokesch , (SCC), [1990] S.C.J.

No. 117 the Supreme Court ruled that evidence obtained during a searchunder warrant had to be excluded under s. 24(2) of the Charter where the warrant was procured through an information which containedfacts solely within the knowledge of police as a result of a Charter violation.

However, in circumstances such as the case at bar wherethe information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for reviewing courts toconsider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn toobtain the warrant: Garofoli, supra. In this way, the state is prevented from benefiting from the illegal acts of police officers, withoutbeing forced to sacrifice search warrants which would have been issued in any event.

Accordingly, the warrant and search conductedthereunder in the case at bar will be considered constitutionally sound if the warrant would have issued had the observations gleaned[page 252] through the unconstitutional perimeter searches been excised from the information. It has been admitted that the police hadreasonable grounds for the issuance of a warrant before undertaking either of the perimeter searches.

This admission on the part of therespondent is eminently proper given the following independent reasonable grounds identified in the information sworn to obtain thewarrant. [66] In this case I have found that the officer’s knowledge regarding the existence of a vial containing the accused’s blood andits subsequent storage in the hospital’s fridge resulted from violations of the accused’s ss. 8 and 9 of the Charter protected interests.

Therefore, any references to vials of the accused’s blood should be excised from the ITO. [67] In the absence of such crucial information the Justice of the Peace would not have had reasonable grounds to believe thatevidence of the specified offence would be found at the hospital and the search warrant should not have been issued. [68] The ITO suffers from further deficiencies. Firstly, the officer’s opinion regarding the significance of the odour of alcoholdetected on the accused at the hospital (para. 23 of the ITO) should be excised from the warrant.

For reasons provided earlier in mydecision at paragraph 30, his opinion is not legally sound and only served to mislead the Justice of the Peace. I have no reason to findthat the officer deliberately misled the Justice of the Peace on this point. Clearly, the officer subjectively believed in the accuracy of hisopinion. Unfortunately, the opinion was strongly worded and suggested a substantial nexus between the presence of the odour of alcoholat the hospital and the commission of an “over 80” offence.

Such an impression should not have been left with the Justice of the Peace. [69] Even when I consider the record as amplified by the officer during the voir dire, it does not support reasonable grounds tobelieve that an “over 80” offence had been committed.

In his viva voce evidence the officer identified the following factors tosubstantiate his reasonable grounds: 1) the odour of alcohol emanating from the accused ( see also paragraph 5 of ITO); 2) the admission of recent consumption (see also paragraph 5 of ITO); 3) the red rimmed and bloodshot eyes (see also paragraphs 5 and 19 of ITO); 4) the idea that the defendant had alcohol in his body the time of the accident;

5) the operation of a motor vehicle; 6) the details from the witnesses regarding the time of the offence, location of offence and description of operation of vehicle; and 7) the presence of an odour of alcohol on the accused later at the hospital which informed his belief that such an odour suggestedhigher levels of alcohol consumption (see also paras. 8, 22 and 23 of ITO) [70] For reasons already provided item 7 is not a legally relevant factor to be considered.

The remaining six factors do not addanything to the grounds outlined in the ITO and do not provide reasonable grounds to believe that the accused’s blood alcoholconcentration exceeded the legal limit. At best the officer had a suspicion that an offence had been committed contrary

section 253(

b) ofthe Code. [71] A further problem with the ITO is that the officer did not include his initial opinion that the accident was caused by theaccused operating his ATV at an excessive speed on an oil- covered gravel roadway. In the absence of this opinion, the Justice of thePeace was in effect presented with: 1) An unexplained, single motor vehicle collision; 2) An odour of alcohol on the accused; 3) An accused with red rimmed and bloodshot eyes; 4) An admission by the accused that he last consumed an alcoholic beverage two hours before the accident. This information wasreferred to in paragraph 5 of the ITO under the section, “Background to Investigation”, rather than the

section entitled “Grounds toBelieve Offence Has Been/Is Being Committed”. [72] Courts have held that in some circumstances consumption plus an unexplained accident may generate reasonable andprobable grounds to believe that the offence of impaired driving has been committed although that may not always be the case: R. v.Rhyason, 2007 SCC 39 , [2007] S.C.J. No. 39 at para. 19. The absence of the officer’s opinion left the Justice of the Peace witha less than complete picture. The officer’s opinion should have been placed before the Justice of the Peace for her consideration.

Havingsaid that, one cannot lose sight of the fact that we are dealing with an ITO in the context of an “over 80 offence”… not impaired driving.If anything, this oversight speaks to carelessness in drafting of the information. [73] The effect of this omission was likely compounded by the officer’s misstatement in paragraph 6 of the ITO wherein hestated, “at 6:02 p.m. the informant followed the ambulance to West Parry Set out Health Centre because the informant believed adrinking and driving offence may have been committed.” (Emphasis added). The evidence disclosed that the officer did not have thisbelief.

He only had a suspicion that a drinking and driving offense had been committed. Therefore, paragraph 6 should be excised as itis misleading. [74] These misstatements left the authorizing judicial officer with the impression that the only explanation for the cause of theaccident was the consumption of alcohol in excess of the legal limit and that the officer believed that to be the case. Such an impressionwas misleading. [75] Once the foregoing information is excised from the ITO, the authorizing Justice of the Peace, her Worship P.

Tennant,would not have had available to her the requisite reasonable grounds to justify the issuance of the warrant. The warrant issued on May14, 2012 is set aside. Therefore, the seizure of the accused’s blood was warrantless and presumptively unreasonable and a violation ofhis

section 8 Charter protected rights. The Crown has not rebutted the presumption of unreasonableness. 7: EFFECT OF THE UNLAWFUL ARREST AND ARBITRARY DETENTION [76] After R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the assessment under s. 24(2) requires a consideration of theseriousness of the police conduct, the impact of the breach on the Charter protected interests of the accused, and society's interest in anadjudication on the merits of the case. 8: SERIOUSNESS OF THE CHARTER INFRINGING STATE CONDUCT [77] In assessing the seriousness of the Charter infringing state conduct, it is helpful to identify the multiple breaches: 1) The accused was unlawfully arrested and detained in the hospital while receiving medical treatment; 2) The officer’s presence in the hospital room reflects a total disregard of the accused’s spatial, informational and privacy interestswhile he was being treated; 3) The accused was subjected to an unlawful breath demand; 4) The accused was subjected to an unlawful blood demand; 5) There was a warrantless seizure of the accused’s blood on May 4, 2012; 6) There was a subsequent seizure of the accused’s blood on May 12, 2012 pursuant to a search warrant which I have found to beinvalid. [78] I find that the cumulative effect of the Charter infringing police conduct was very serious.

The original unlawful arrest,that set the stage for the subsequent multiple breaches, did not even come close to meeting the reasonable grounds threshold. This was acase where the officer had suspicion and nothing more. It is troubling that notwithstanding an arrest for impaired driving the accused

was never charged that offence. Instead, the grounds that once informed an arrest for impaired driving were subsequently relied upon tosupport a belief that the offence of “over 80” had been committed. [79] It cannot be forgotten that breath and blood demands allow for statutorily authorized warrantless seizures of bodilysubstances. Obviously, a blood demand is more intrusive. These demands allow for significant intrusion into one’s personal privacy. Like search warrants, these statutorily authorized demands require reasonable grounds to believe that a criminal offence has occurred.

Inthis case those grounds were not close to being met. [80] The breach of the accused’s privacy interests at the hospital while receiving medical treatment was significant. When theofficer was directed to the accused’s room and allowed entry it appears little consideration was given to whether he should even be therein the first place. The accused was receiving emergency medical attention. When the officer attended with the accused he had nothingmore than suspicion regarding the accused being involved in a possible drinking and driving offence.

This case raises concernsregarding the free flow of information between police and hospital staff. I have not heard any evidence to suggest that the investigatingofficer or the hospital staff took any steps to safeguard the accused’s privacy while he was being treated in the hospital. Obviously, thetreating physician recognized the privacy concerns and directed that the officer leave the room. Based on the officer’s evidence he didnot leave the room but simply stood behind the curtain of the hospital bed.

If anything, hospital staff assisted the officer by bringing himto the room where the accused was being treated and then granted him unfettered access to the accused and ultimately the vial of theaccused’s blood. [81] The search and seizure conducted in accordance with the search warrant that I have found to be unlawful was also aserious breach.

While I do not suggest that the officer deliberately attempted to mislead the authorizing justice, his inaccurate wordingand the omission of important information in what was a relatively simple investigation amounts to unacceptable and carelessdraftsmanship. [82] I would assess the Charter infringing state conduct as serious for s. 24(2) purposes. This line of inquiry points towardsexclusion of the evidence seized. 9: IMPACT ON CHARTER PROTECTED INTERESTS [83] There can be no doubt that an arrest is a serious intrusion on the personal autonomy of the individual arrested: R. v.Brown, 2012 ONCA 225 , [2012] O.J.

No. 1569 para. 25. [84] The breaches involved a violation of personal privacy interests and the eventual seizure of bodily fluids, matters whichattract significant Charter protection. As observed in Dyment, supra, at paragraph 38: 38 The Charter breach, in my view, was a very serious one. In Pohoretsky, supra, at p. 949, Lamer J. observed that "a violation of thesanctity of a person's body is much more serious than that of his office or even of his home". It is true that the police in that case weredirectly implicated in the invasion of the appellant's body.

However, as I earlier indicated, the sense of privacy transcends the physical.The dignity of the human being is equally seriously violated when use is made of bodily substances taken by others for medical purposesin a manner that does not respect that limitation. In my view, the trust and confidence of the public in the administration of medicalfacilities would be seriously taxed if an easy and informal flow of information, and particularly of bodily substances from hospitals to thepolice, were allowed. In R. v.

DeCoste (1983), (NS SC), 60 N.S.R. (2d) 170 (S.C.T.D.), at p. 174, Grant J. stated hisbelief that "members of the public consider a hospital as a place where the sick and injured are treated and not a place where a doctorwould take blood from an unconscious or semi-conscious person for the sole purpose of satisfying the unlawful demand or request of apolice officer".

I agree, and I do not think they would feel differently about doctors and medical personnel freely handing over bloodtaken for medical purposes to a police officer or the police officer accepting it when there are well-known and recognized procedures forobtaining such evidence when the police have reasonable and probable grounds for believing a crime has been committed. In such a case,all are implicated in a flagrant breach of personal privacy.

Though he spoke in terms of the pre-Charter "community shock" test,Mitchell J. in this case was substantially right when he stated at p. 355: If the court received evidence obtained by taking a blood sample without consent, medical necessity or lawful authority, and without thepolice having any probable cause, it would bring the administration of justice into disrepute....

What happened here constitutes such agross violation to the sanctity, integrity and [page 440] privacy of the appellant's bodily substances and medical records that thecommunity would be shocked and appalled if the court allowed the admission of this evidence in the face of the Charter. Such a practice would bring both the administration of health services and the administration of justice into disrepute. [85] This line of inquiry favours exclusion of the evidence. 10: SOCIETY’S INTEREST IN AN AJUDICATION ON THE MERITS [86] All of the evidence seized, both with and without warrant, is reliable.

The blood and the results of its analysis are centralto the Crown's case. The societal interest in the adjudication of this driving offence on its merits would be seriously undercut byexcluding reliable and essential evidence. This line of inquiry favours admission of the evidence. 11: BALANCING [87] In determining what remedy is appropriate under the Charter a Court should not strive to punish police for their conductor misconduct. At the same time a court should not be seen as condoning police conduct which falls significantly short of respectingCharter protected interests.

This concern is heightened when the breaches occur in a hospital setting and involves a seizure of a bodilysubstance. [88] I appreciate that the evidence seized pursuant to the warrant was reliable and necessary for the effective prosecution ofthis matter. However, when I balance the relevant factors as set out in Grant, supra, I come to the conclusion that a reasonable person,

informed of the relevant circumstances and familiar with Charter values, would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute. The police conduct was serious and there was a significant impact on the accused’s privacy interests. Accordingly, the accused’s application for exclusion of the evidence will be granted. The Crown will be prohibited from relying upon the blood that was seized and the results of its analysis. Released: June 26, 2013 Signed: “Justice Andrew L. Buttazzoni”