R v Xavier, 2024 MBPC 9

CITATION: R v Xavier, 2024 MBPC 9 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) M. Hazelton ) for the Crown– and – ) ) Cainin Cole Xavier ) B. Sinder and D. Barbour ) for the Accused ) ) ) Reasons for Decision ) Delivered February 2, 2024 H.L. ALLEN, P.J. [1] Cainin Xavier is before the court charged with offences resulting from a motor vehicle accident which took place onSeptember 12, 2022, in Winnipeg, Manitoba. [2] It is alleged by the Crown that Mr. Xavier was driving a motor vehicle while impaired.

The facts before the court allege thatthe vehicle driven by the accused, after colliding with another vehicle, ended up wrapped around a utility pole. Various police officerswere on the scene immediately, other officers arrived later. One of the attending police officers pulled the accused out of his vehicle. Theofficer was assisted by two civilians in his efforts to get the accused safely away from the car. [3] Mr. Xavier was subsequently taken by ambulance to the Health Sciences Centre. He was accompanied in the ambulance bypolice officer Constable Relke.

That officer noted that the accused had the smell of alcohol on his breath, that his speech was slurred andhe seemed disorientated. The officer later put those observations into his report or narrative. That narrative was later conveyed to the leadinvestigative officer, Constable Bunston, who was the officer who later prepared an Information to Obtain (ITO), information providedin an effort to obtain a warrant to receive the results of an alcohol analysis done on the blood sample taken from the accused at thehospital.

The police later did apply and were granted a search warrant for the accused’s blood samples and a production order for Mr.Xavier’s hospital records from his admission at the time of this incident. The accused has subsequently filed a notice of application for: 1. An order declaring that the applicant’s rights as protected by

section 8 of the Charter were infringed by the Winnipeg PoliceService in seizing his medical records and blood samples. 2. An order pursuant to section 24(2) of the Charter that all evidence obtained as a result of the above Charter violations be excludedat the applicant’s trial. [4] The accused/applicant says that his rights as protected by

section 8 of the Charter were infringed by the prosecution as thesearch warrant and production order were illegally obtained. [5] At the argument of the motion, the applicant conceded that the issuing judicial justice of the peace (JJP) did have grounds tobelieve that the ITO revealed evidence that justified the charge of driving while impaired. [6] The question before the court is whether a review of the amplified record would justify the issuance of the warrant and theproduction order. [7] There is significant case law from the Manitoba Court of Appeal, and it is agreed by the parties, that the applicant bears theonus of establishing that his rights under

section 8 of the Charter were infringed or denied on a balance of probabilities. A judicialauthorization and the sworn ITO supporting it are presumed to be valid. [8] As to the scope of a review of a judicial authorization, the Supreme Court said the following in R v Garofoli, (SCC), [1990] 2 SCR 1421 at paragraph 56: 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 be

any basis for the decision of the authorizing judge. [9] Also from the Supreme Court, this time from R v Araujo, 2000 SCC 65 at paragraph 54: [T]he test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could haveissued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. [10] In the case at bar the applicant is making a sub facial attack on the judicial authorization.

The nature of that form of action isset in R v Sadikov, 2014 ONCA 72 at paragraph 38: Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para. 50; and Wilson,[2011 BCCA 252] at para. 40. Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit thereviewing judge to substitute his or her view for that of the authorizing judicial officer: Araujo, at para. 51; and R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, at p. 1452.

The task of the reviewing judge on a sub-facial challenge is to consider whether, onthe record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant: Araujo, atpara. 51; and Garofoli, at p. 1452. The analysis is contextual: Araujo, at para. 54.

The reviewing judge should carefully consider whethersufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on thebasis of which the enabling warrant could have issued: Araujo, at para. 52. [11] The authority to issue a search warrant and order production of documents is found in the Criminal Code. As to a generalwarrant to search, section 487(1) says: A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building,receptacle or place . . . (

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will revealthe whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, . . . may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer orenforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who isnamed in the warrant (

d) to search the building, receptacle or place for any such thing and to seize it. [12] As to the production order, the governing

section is 487.014(1), which reads: 487.014(1) General production order Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order aperson to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepareand produce a document containing data that is in their possession or control at that time. 487.014(2) Conditions for making order Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds tobelieve that (

a) an offence has been or will be committed under this or any other Act of Parliament; and (

b) the document or data is in the person's possession or control and will afford evidence respecting the commission of the offence. [13] As to driving charges related to impairment, it is settled law in Canada that R v Stellato, (SCC), [1994] 2 SCR478, made it clear that a conviction will be established if a driver’s ability has been proven to have been even slightly impaired byalcohol or drugs. [14] In the case at bar, the ITO relates that Constable Relke, who travelled with the accused to hospital, noted in his police narrativehis opinion that the accused was impaired by alcohol.

The officer’s narrative also states that the accused’s breath smelled of alcohol, hewas slurring his speech and he appeared disoriented. Additionally, the Crown points to information provided to the affiant fromConstables Veremchuk and Fehr, who detailed following the accused’s vehicle on the day in question. They noted that the vehicle wastravelling at a high rate of speed and that it had “run a stop sign” and then caused the fatal accident by failing to stop at the four-way stopintersection of Grey Street and Munroe Avenue.

[ 15 ] It appears that the only other police officer who had contact with the applicant was Constable Veremchuk, who removed Mr. Xavier from the vehicle and took him to a safer place away from the damaged car. In doing so, the constable was assisted by two civilians, Jatin Battan and Tyrone Penner. Tyrone Penner was later interviewed by police officer Constable Karnafel, on September 24, 2022.

In his statement, Tyrone Penner said that he did not smell alcohol on the accused. [ 16 ] When Constable Bunston prepared his ITO request, he had received the Penner statement and logged it into police storage, but he had not read the statement. The applicant argues the significance of the Tyrone Penner statement and suggests that the non-disclosure of that statement has caused a Charter breach of the accused’s rights. The applicant argues that if it had been disclosed then the search warrant and production order would not have been granted. [ 17 ] Additionally, the applicant argues that the ITO is misleading.

The applicant points to paragraph three of the ITO, wherein the affiant states: “ I am the lead investigator in this matter and as such have reviewed all information related to this matter and believe the information contained in this appendix to be true whether I learned this firsthand or from other sources.” [ 18 ] The applicant argues that it is a false statement to say that the affiant has reviewed “all information related to this matter” when he had been aware of the Penner statement but had not read it and did not reference it in the ITO.

The Crown counter-argues that it would be an impossible standard on the police to have to read everything available. In my opinion, it is misleading to swear that one has read everything when clearly one has not. [ 19 ] The judicial process must be balanced and fair. It is important that affiants either actually do read everything relevant that is in police possession or set out in the ITO what the affiant has not read and why. It would create an unfair process if police affiants could pick and choose what to disclose and what not to. I also agree with the applicant that the affiant in this case was not rushed.

As the ITO was sworn a month after the incident and the blood sample was on a 90-day hold, there was no reason why Constable Bunston could not have read the Penner statement before preparing the ITO. [ 20 ] If the decision before the JJP was an adjudication that involved a balancing of evidence, then the failure on the part of the affiant to have read and revealed the Penner information would have been misleading and unfair. But that is not the nature of the duty performed by the judicial officer in assessing whether the ITO provides information to justify the issuance of a search warrant.

The officer must decide if there is any reasonable evidence to indicate that a crime may have been committed. [ 21 ] It is conceded in this case that facially that evidence exists. When expanded into a sub facial challenge, the only evidence offered by the applicant to detract from the existing evidence is the fact that a civilian witness did not note a smell of alcohol. In my opinion, this does not take away from the evidence that a police officer who rode in the confined space of an ambulance with the accused smelled alcohol on his breath.

The fact that a civilian, who apparently had only a brief involvement with the accused, did not smell alcohol from him will be evidence for trial and could go to the reliability of the police witness. [ 22 ] In my opinion, even if the Penner information had been revealed in the ITO material, the search warrant and production order would still have issued because the Crown still had the required “some evidence” which is a pre-condition to the issuance of a warrant. [ 23 ] It is also notable that Tyrone Penner noted that the accused seemed disoriented and was slurring his speech.

There is no question that there could be other explanations for that, such as the shock of being in a serious vehicle collision, but it is not the job of the JJP to weigh conflicting evidence. The requirement is that there be some evidence. The requirement is not that there be only uncontested evidence. [ 24 ] In addition to the evidence from Constable Relke, the ITO contained the observations of the police officers who said that they observed the accused’s vehicle driving at a high rate of speed and ignoring stop signs.

These are allegations pertaining to poor driving decisions. [ 25 ] As set out in R v Bush , 2010 ONCA 554 , and followed in Manitoba in R v Fehr (24 August 2022), Winnipeg CR 21-01-38506 (MBQB), an unexplained motor vehicle accident and some indicia of consumption can lead to a reasonable belief that an individual’s ability to drive was impaired at the time. [ 26 ] Having assessed the evidence in this case, I am satisfied that there was reasonable evidence before the JJP to have issued the search warrant and production order.

I am not satisfied that amplifying the evidence in a sub facial challenge disturbs the qualifying evidence before the judicial officer. [ 27 ] I agree with defence counsel that affiants should not say they have reviewed all available material when they have not, but I do not believe that in this case that omission is of significance. As stated, I believe that even if the disputed material had been before the JJP, the orders would have been appropriately made in any event. [ 28 ] I am not satisfied that a

section 8 Charter violation has been established. I am dismissing the application. Original signed by Judge Allen H. LAWRENCE ALLEN, P.J.