HER MAJESTY THE QUEEN — v. —, 2014 ONCJ 81

ONTARIO COURT OF JUSTICE DATE: 2014·01·30 COURT FILE No.: Brampton Information #13-368 Citation: R. v. Garcia-Machado, 2014 ONCJ 81 BETWEEN: HER MAJESTY THE QUEEN — AND — GILBERTO GARCIA-MACHADO Before Justice P.F. Band Heard on January 30, 31 and February 3, 2014 Reasons for Judgment released on February 18, 2014 Ms. V. Puls................................................................................................ counsel for the Crown Mr. M. DeRubeis ........................................... counsel for the defendant Mr.

Garcia-Machado BAND J.: INTRODUCTION [1] This case raises once again the question whether police failure to return or report items seized to a Justice of the Peace as soon aspracticable, contrary to the search warrant provisions of the Criminal Code, constitutes a breach of an accused’s rights under s. 8 of theCharter. This issue, which is central in this case, is not new. However, it would appear that it has not been addressed in Ontario sincethe release of R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. BACKGROUND [2] Shortly after 6:00 a.m. on August 25, 2012, after attending a party, Mr.

Garcia-Machado drove his Volkswagen Golf off the road,where it collided with two trees before coming to a stop. Mr. Garcia-Machado was carrying two passengers: his friend Mr. CarsonCameron sat in the front and Mr. Carson’s friend Ms. Katheryn Alphonso sat in the rear. Able to leave the car under her own steam, Ms.Alphonso ran home to call for help. She sustained a puncture wound to her knee that required stitches. Mr. Cameron sustained aconcussion and a serious fracture to his lower right leg which required surgery and a long period of rehabilitation. Mr. Garcia-Machadosuffered a broken femur.

Both men were knocked unconscious by the impact and had to be extricated from the car by firefighters usingthe “jaws of life” before being taken to hospital. [3] Using a search warrant, police seized a sample of Mr. Garcia-Machado’s blood and his medical records from the hospital on August28, 2012. These were submitted to the Centre of Forensic Sciences (“CFS”) and a toxicologist was able to use them to come to theopinion that Mr. Garcia-Machado was “Over 80” at the time of the accident and that his ability to drive would have been impaired byalcohol. [4] On October 26, 2012, Mr.

Garcia-Machado was charged with Impaired Driving Causing Bodily Harm and “Over 80” Causing BodilyHarm. [5] On December 17, 2012 and for the first time, police made a report to a Justice of the Peace concerning the items seized from the

hospital. THE

SECTION 8 ISSUE [ 6 ] The defence challenges the admissibility of the blood and medical records because the police did not report to a Justice of the Peace as soon as practicable , contrary to s. 487(1) (

e) of the Criminal Code . In fact, police did not report until December 17, 2012 – that is, nearly 4 months after the items were seized. The defence position is that the continued detention of the seized items – which contain private information – was unlawful and contrary to s. 8 of the Charter and that both items should be excluded pursuant to s. 24(2). [ 7 ] While the Crown acknowledges that police failed to comply with the Criminal Code and acted unlawfully, she maintains that a s. 8 breach does not necessarily follow.

But even if the unlawful detention constituted a s. 8 breach, it was not a serious breach and does not warrant exclusion under s. 24(2). The Importance of the Blood Sample and Medical Records [ 8 ] The Crown’s ability to prove the “Over 80” allegation depends entirely on the admissibility of the blood sample or the medical records. [ 9 ] Ms. Betty Chow, a CFS toxicologist, testified as an expert at trial. Based on the blood sample, she was able to project Mr. Garcia- Machado’s Blood Alcohol Content (“BAC”) back to the time of driving.

At 98 mgs of alcohol per 100 mL of blood, it exceeded the legal limit. [1] [ 10 ] Also, because the blood was tested for alcohol in the hospital laboratory, the medical records contain the hospital’s calculation of his BAC in mmol/L. Ms. Chow was able to use those results to project Mr. Garcia-Machado’s BAC back to the time of driving. Based on this method, Mr. Garcia-Machado’s BAC was 103 mg%. [2] [ 11 ] Ms. Chow also gave expert testimony about the impairing effects of alcohol.

She testified that an individual with a BAC of 98 mg% would be impaired in at least one or more of the faculties required for driving. [3] [ 12 ] As I understood the Crown’s closing argument, she relied on this expert evidence in relation to the Impaired Driving allegation. As she put it, “the Crown can meet its onus on both counts just from the medical records.” [ 13 ] Put simply, convictions in this case depend on the admissibility of the blood or the medical records. That, in turn, depends on A. whether the police’s failure to comply with s. 487(1) (

d) of the Criminal Code constitutes a breach of s. 8 and, if so, B. whether the evidence should be excluded pursuant to s. 24(2). ADDITIONAL FACTS PERTAINING TO THE SEARCH WARRANT AND REPORT The Warrant [ 14 ] PC Josh Rose was the first officer to arrive on-scene. During his investigation, he formed the opinion that Mr. Garcia- Machado’s ability to drive had been impaired by alcohol. He based his opinion on the scene itself, the existence of a mostly empty bottle of rum in the car, [4] the fact that the passenger was clearly intoxicated and the smell of alcohol emanating from Mr.

Garcia-Machado’s mouth and body. [ 15 ] PC Ian Kosher, a Qualified Breath Technician, was dispatched to hospital to pursue the investigation. Based on PC Rose’s information and his own observations, PC Kosher believed that Mr. Garcia-Machado had committed the offence of impaired driving. [ 16 ] Because of Mr. Garcia-Machado’s condition, an arrest and breath tests could not be performed. Instead, PC Kosher went to the laboratory to place a seal on a vial of blood that had been drawn by the attending nurse. His intention was to seek a search warrant to enable him to seize the vial of Mr.

Garcia-Machado’s blood and medical records for further investigation. [ 17 ] On August 28, PC Kosher prepared and obtained a search warrant under s. 487 of the Criminal Code permitting him to seize the sealed vial of blood and Mr. Garcia-Machado’s medical records pertaining to the treatment he received after the accident.

The Appendices to the warrant indicate that the police intended to provide the blood and medical records to the CFS. [ 18 ] On its face, the warrant explicitly states as follows: THEREFORE, this is to authorize and require you, between the hours of 8 a.m. and 4 pm on August 28, 2012, to enter the premises and to search for and seize the above things, and to bring them before me or some other justice to be dealt with according to law . (my emphasis) [ 19 ] Below the text concerning details of the execution of the warrant is text explicitly referring to the “return.” [ 20 ] After obtaining the blood and medical records, PC Kosher returned to the police station where he placed the blood in the refrigerator.

Later that afternoon, he told PC Derouet that he had executed the warrant and accompanied her to the refrigerator, where she took custody of the blood. The Submission to the CFS [ 21 ] On August 28, PC Derouet personally delivered the blood to the Centre of Forensic Sciences (“CFS”) along with a written submission requesting an opinion about the presence of alcohol or “other drugs” in the blood.

[ 22 ] On September 12, after reviewing the paperwork, Ms. Chow emailed PC Derouet to request a copy of the toxicology results from the hospital records in particular. She felt these would assist her in narrowing down the potential number of drugs to look for in the blood. She also explained that, in her experience, she is often asked to interpret hospital BAC findings and that she is better able to interpret medical records than police officers. [ 23 ] PC Derouet sent a copy of the entire medical record to Ms. Chow, who believes that this was done by way of a .pdf email attachment. [ 24 ] On September 13, Ms.

Chow performed the alcohol analysis, and reported her BAC findings and back projections by way of a Report dated September 24, 2012 (Exhibit 6). [ 25 ] By way of Opinion Letter dated October 5, 2012, Ms. Chow provided further explanations as well as an opinion concerning impairment (Exhibit 7). [ 26 ] The Information was sworn on October 26, 2012. [ 27 ] PC Kosher testified that he had no intention of forwarding the medical records to the CFS, and did not know how Ms. Chow had come into possession of them.

As far as he knew, the copy of the medical records he seized remained at the police station until the day he brought them to court for trial. [ 28 ] Ms. Chow testified that the medical records were kept in a file room at the CFS and that approximately 10 CFS staff could have had access to them. She added that all CFS staff are required to sign confidentiality agreements and understand that they are not to disclose information they receive. She did not know whether PC Derouet had mentioned that she had obtained any sort of release concerning the records. [ 29 ] PC Derouet did not testify at the trial.

The Late Report to a Justice of the Peace [ 30 ] PC Kosher filed a Report to a Justice of the Peace and a draft Order of Disposition of Items Seized on December 17, 2012 (Exhibit 4). This was approximately 15 weeks after the seizure, 10 weeks after all testing had been completed at the CFS and seven weeks after charges had been laid against Mr. Garcia-Machado. [ 31 ] The Report to a Justice indicates that the blood was being detained at the CFS and that the medical records were being stored at the police station . [ 32 ] The justice signed the Order of Disposition.

This pre-printed form, which was provided by PC Kosher, contains boxes to indicate whether some or all items seized are to be detained or returned. None of the boxes are checked off in this case, and none of the seized items are referred to. Because PC Kosher inserted the words “Peel Regional Police” in the space reserved for detention of items (as opposed to filling in spaces concerning items to be returned to their owners) one must presume that the justice intended that at least one item be detained.

But it is impossible to know whether the intention was that both be detained. [ 33 ] The pre-printed text also reflects the provisions of the Criminal Code by referring to the duration of the detention as follows: … a date not more than three months from the date of seizure or, if charges have been laid before that date, until the completion of all proceedings . PC Kosher’s Understanding of the Duty to Report [ 34 ] PC Kosher’s understanding was that a return to a justice was to be done only once charges had been laid, and he made a note to that effect on his copy of the investigative package.

After finding out that charges had been laid, he attended the courthouse when he had an opportunity to do so. He explained that he had other investigations to handle, that he was on a days/afternoon/nights

schedule and that he learned of the charges on a morning after a string of night shifts. As such, he waited for an opportunity to attend court during a day shift. [ 35 ] While he testified that on a number of occasions, he asked PC Derouet if charges had been laid, he was unable to recall when he learned that they had been. His evidence was that “as soon as I received the information and had the an opportunity to do it, I did it as soon as I could.” [ 36 ] PC Kosher attributed his understanding that the return must take place once charges are laid to his training and what he has been taught.

He also testified that he would have heard that from colleagues from the office, some of whom were superiors and others colleagues. He denied that this understanding was “standard policy” in the Peel Regional Police Service. [ 37 ] PC Kosher explained that he does not know the language of s. 487(1) (

d) and (e), but that he might have read them “in schooling somewhere along the way.” He acknowledged that he must have been mistaken because in the few days before trial, he had learned and believed that the requirement is to return “within 90 days” of the seizure. He explained that his new understanding came from a compilation of the forms and information received from other officers.

He then referred to the Order of Disposition of Items Seized form, which indicates “a date not more than three months from the date of the seizure…” beneath the heading “Order of Detention.” THE LAW The Purpose of the Report/Return Provisions of the Code [ 38 ] Defence counsel submitted two authorities in his closing argument: R. v. Guiller , [1985] O.J. No. 2442 (D.C.) and R. v. De

Bortoli, [2012] B.C.J. No. 2233 (S.C.). The Crown relied on R. v Backhouse, (ON CA), [2005] O.J. No. 754 (C.A.). [39] In Guiller, Borins J. (as he then was), explained that The purpose of the return is to ensure that the items seized remain under the control of the judicial process, retaining only thosenecessary for effective law enforcement and returning those not required for that purpose.

Just as the decision to issue a search warrantis not left to the police officer but is placed in the hands of a neutral justice, so too the decision to retain or return the product of thesearch.[5] Does Police Failure to Report/Return render a Search Unlawful? [40] For almost three decades now, it has been clear law in Ontario that police act unlawfully when they fail to comply with thereport and return provisions of the Code. In Guiller, Borins J. wrote: I have no doubt that the necessity of making a return is an integral and essential aspect of the legal execution of search warrant.

As Iwill explain, the failure to act in compliance with [the section] removes an important safeguard to the invasion of privacy rightspermitted by that section. It is the courts and not the police who determine whether adequate grounds exist for retaining seizedmaterials. When the provisions of [the section] have not been met the search is rendered unlawful….[6] [41] In Backhouse, the Ontario Court of Appeal also held that, in the absence of a report or return to a justice, the continueddetention of items seized “was accordingly unlawful.”[7] [42] More recently, in R. v. Villaroman, 2012 ABQB 630 , [2012] A.J.

No. 1425 (Q.B.), citing R. v. Martens, [2004]B.C.S.C. 1450, the court explained that because the warrant process is a continuing one, a breach at any stage taints the wholeprocess.[8] What Constitutes Failure to Report/Return as Soon as Practicable? [43] In this case, PC Kosher filed his report almost four months after seizing the items from the hospital. The Code required thathe do so as soon as practicable. This language is mandatory. [44] In R. v. Gignac, [2007] O.J. No. 4019 (C.J.), the court was confronted with a report that was filed more than 7 days after awarrant had been executed.

The court analyzed the issue by comparison to the telewarrant regime, in which the Code stipulates that areport or return must be made within seven days.

Finding that “Parliament effectively relaxed the timelines for filing a report from asearch warrant issued under s. 487.1, as an accommodation for the telewarrant process, itself,” the court held that reports pursuant to ageneral warrant should be filed “more expeditiously or at worst not less expeditiously, than those authorized by the telewarrant process.” In other words, within seven days of the seizure.[9] [45] Rather than adopt such a clear-cut rule in the absence of clear legislative language, I would prefer to reason by analogy toother instances in which the phrase as soon as practicable is employed in the Criminal Code.

For instance, the drinking and drivingsections require that an officer’s demand for a breath sample and the taking of the breath sample occur as soon as practicable.[10] Iwould note that the time constraints in that

section are stringent because of the impact on the suspect’s Charter-protected rights.[11] [46] In that context, the Court of Appeal has interpreted this phrase to require that the police act reasonably.[12] In assessingdelays, the court must consider all of the circumstances. [47] In this case, the delay was caused by PC Kosher’s ignorance of the law and that of his fellow officers (including superiors),and his failure to consult the appropriate

section of the Criminal Code. It was also the result of improper training and his decision toprioritize other investigations and to accommodate his shift work. [48] It must also be noted that the language in s. 487(1)(

e) is not difficult to understand. Moreover, PC Kosher’s role in theinvestigation was not complicated, nor were the items seized voluminous.[13] Also, there were no exigent circumstances. [49] On either analysis, I find that the report was not filed as soon as practicable[14] and that the continued seizure in this casewas therefore unlawful.

Is Unlawful Detention of Items Seized a Breach of s. 8? [50] In Backhouse, the Court of Appeal did not decide whether the failure to comply with the return and report provisionsrendered the initial lawful seizure unlawful.[15] However, the vast majority of Ontario cases that I have reviewed suggest that such afailure constitutes a breach of s. 8.[16] In fact, this was conceded by the Crown in Windsor in R. v. Poulin, [2004] O.J. No. 1354(S.C.J.). [51] It cannot be doubted that Mr.

Garcia-Machado has a high expectation of privacy in the items seized, both of which contain ahigh level of personal and private information.[17] [52] The facts in Correia, supra, are almost identical to those in this case, except that the police had made an initial report andobtained an order for the detention of the blood samples and medical records. That order was in effect for a period of three months, andthe police failed to apply to extend it. A CFS report based on the items seized was generated subsequently.

Relying on Guiller, supra,Baldwin J. held that the illegal detention of the items seized rendered the search unreasonable. [53] While it is true that in R. v. Persaud, [2008] O.J. No. 5077 (S.C.J.), the court held that “s. 8 does not apply in respect of thedetention of items seized from [the accused],”[18] I note that this decision runs against the grain of the other Ontario authorities, as wellas those from British Columbia, Alberta, Nova Scotia and Quebec.[19] What is more, it does not appear that the court in Persaud had

the benefit of Backhouse , Guiller or Correia . [ 54 ] As the authors of Search and Seizure Law in Canada have written, …it is often only during the ongoing detention that the governmental intrusion into the privacy interests of the individual are realized. It is detention which allows examination, copying, and forensic testing. These aspects of the seizure, as much as the initial search itself, would seem to engage the interests of the individual which s. 8 of the Charter was intended to protect.

As such, the ongoing detention should meet the same constitutional standard that the original seizure is measured against, that is, reasonableness . [20] [ 55 ] In this case, based on the authorities and the highly personal and private information at issue, I find that the police failure to report to a justice as soon as practicable rendered the otherwise valid search unlawful and unreasonable, contrary to s. 8 of the Charter . R. v. Grant and Section 24(2) [ 56 ] In determining whether to exclude or admit evidence, the court must have in mind the long-term impact of doing so on the administration of justice.

The aim of s. 24(2) is not to punish the police; rather, it aims at systematic concerns. In coming to this determination, the court should inquire into the following factors: 1. The seriousness of the Charter -infringing state conduct; 2. The impact on the Charter -protected interests of the accused; and 3. Society’s interest in adjudication on the merits. [21] 1.

Seriousness of the Charter -infringing state conduct [ 57 ] The court must ask itself whether it must dissociate itself from the police conduct in order to maintain the public’s confidence in the administration of justice. [ 58 ] The seriousness of Charter -infringing conduct can increase where it is wide-spread or systemic.

In Villaroman , the court found that “there are a shocking number of cases that deal with these sections of the Criminal Code ” and that “the shock comes from the fact that the police are not complying with what appears to be a mandatory provision of the Criminal Code .” What is more, the court found that this type of failure was not only systemic, but also a “not uncommon situation in police forces across Canada.” [22] [ 59 ] In Cunliffe , supra , Justice Corbett, sitting in Milton, Ontario, found that police routinely failed to return on warrants and “did not realize it was necessary to do so.” He went on to describe this “sort of fundamental misunderstanding” as a “matter of institutional concern” and quashed a warrant as a result. [ 60 ] I am of the view that PC Kosher’s actions are symptomatic of an institutional and systemic problem.

His was a fundamental misunderstanding of the sections of the Criminal Code he had invoked to obtain a search warrant in this case. That his colleagues and superiors knew no better is evidence that the problem does not rest exclusively with PC Kosher. In that sense, it cannot be said that this is an isolated problem. [23] [ 61 ] While the police are not required to reconcile conflicting precedents, they are expected to know the laws they enforce and employ. [24] The language of s. 487(1) (

e) is clear and easy to understand. Also, the fact that failing to report or return on a warrant is unlawful has been part of the jurisprudence of this province for almost 30 years. [ 62 ] That the Court of Appeal in Backhouse did not declare that such unlawful detentions also breached s. 8 of the Charter is of no moment. First, many cases before and since have stated that they do.

Second, it would be unacceptable if the police were encouraged to weigh the relative degrees of seriousness of non-compliance with the law by drawing distinctions between the various sources of law. [ 63 ] PC Kosher’s approach in this case did not rise to the level of wilful or reckless disregard for the law and Charter rights. Nonetheless, it was careless and negligent. As an officer invoking the search warrant power, he should have understood the process from beginning to end. It is troubling that the medical records were obtained by PC Derouet and provided to the CFS without his knowledge.

The defects in the draft Order of Disposition of Items Seized also reflect a lack of knowledge and care on his part. These failures cannot be said to be merely inadvertent oversights. [25] [ 64 ] To be clear, I am not suggesting that PC Kosher acted dishonestly or in bad faith.

But negligence cannot be equated with good faith. [26] And more to the point, in cases of systemic failure, good faith takes on less importance. [ 65 ] The breach in this case is not minor or technical, but substantive. [27] It involves provisions of the Criminal Code that are essential to maintaining the courts’ supervision of investigative steps that invade the privacy of individuals. [28] The police failure to comply with those provisions in this case had the effect of ousting the court from its supervisory role until after all additional investigative steps had been taken in relation to items that were being held unlawfully. [ 66 ] In my view, this effect is not attenuated by mention of the CFS in the Appendices to the warrant.

To view it this way would be to conflate two very distinct aspects of the search warrant regime. Moreover, in this particular case, while PC Kosher included reference to the CFS in the search warrant materials, he testified that he had no intention of delivering the medical records to the CFS. [ 67 ] That being the case, and there being no extenuating circumstances, I am of the view that the court must dissociate itself from such conduct lest it be thought to be condoning it. [ 68 ] This factor weighs heavily in favour of exclusion of the evidence.

2. Impact on the Charter -protected interests of the accused [ 69 ] The impact of the analyses conducted while Mr. Garcia-Machado’s blood and medical records were detained unlawfully is serious.

They constituted intrusions into areas in which he held a high expectation of privacy and led to the discovery of incriminating evidence. [29] That the initial search and seizure were lawful does not minimize the impact on his interests. [30] [ 70 ] Some authorities have held that a breach of the return/report provisions, “standing alone,” is insufficient to warrant exclusion of evidence, [31] In my view, such an approach ignores the fact that this breach is a continuing one. And in Mr.

Garcia-Machado’s case, this “stand alone” breach also led to the dissemination of his medical record to, and continued detention at, the CFS without judicial approval or PC Kosher’s knowledge. [32] In fact, PC Derouet sent more of the record to the CFS than Ms. Chow had requested. [ 71 ] I find that this factor weighs in favour of exclusion of the evidence. 3.

Society’s interest in adjudication on the merits [ 72 ] The relevant inquiry at this stage is whether the truth-seeking function of the trial process would be better served by admission or exclusion of the evidence. [33] The seriousness of the case, the reliability of the evidence and its importance to the prosecution are important factors. [ 73 ] This case involves a very serious car accident that led to significant injury to a passenger and the driver. The blood sample and medical records are highly reliable pieces of evidence.

Unlike other types of evidence, their reliability is not likely to diminish over time. Both pieces of evidence are very important, if not necessary, to the Crown’s case. [ 74 ] In my view, this factor weighs in favour of admission of the evidence.

Balancing the Factors [ 75 ] In its task of determining whether the administration of justice will be better served by admission or exclusion of evidence, the court’s focus must be on the long-term effect on the public’s confidence in the justice system. [34] [ 76 ] I am of the view that the principal concern in this case is the seriousness of the Charter breach and the need for the administration of justice to dissociate itself from unlawful state conduct that has the effect of preventing the courts from exercising their supervisory function.

That function is critical to maintaining the appropriate limits to state intrusions into individual privacy. [ 77 ] The police conduct in this case was the result of an apparent systemic and negligent failure to comply with the report and return provisions of the Criminal Code in the face of clear law requiring compliance. [ 78 ] The breach was not merely “technical” or procedural, but had a serious impact on Mr.

Garcia-Machado’s Charter -protected right to privacy. [ 79 ] In all the circumstances, I have come to the conclusion that the long-term repute of the administration of justice will be better served by the exclusion of the blood sample and medical records from evidence. CONCLUSION [ 80 ] The defence application is therefore allowed, and the blood sample, the medical records and Ms. Chow’s report, letter and testimony in relation to those documents are excluded from evidence in this trial. [ 81 ] As a result, I find that the Crown has not proven the charges against Mr.

Garcia-Machado beyond a reasonable doubt and he is therefore entitled to be acquitted on both counts. [ 82 ] If I am wrong about the Crown’s position as to the central importance of Ms. Chow’s evidence to the charge of Impaired Driving Causing Bodily Harm, I am of the view that the Crown has failed to prove this allegation beyond a reasonable doubt. Without the expert evidence as to impairment, the Crown is left with the following evidence: • A serious, unexplained accident in which Mr. Garcia-Machado’s car left the road and struck two trees; • An almost empty bottle of rum in the car that Mr.

Cameron consumed; • Two empty cans of Molson Canadian in the car; and • An odour of alcohol emanating from Mr. Garcia-Machado’s breath and body. [ 83 ] Neither of the passengers were able to recall anything about the accident or the driving that preceded it, and neither of them saw Mr. Garcia-Machado consuming any alcohol. Mr. Cameron, who knew Mr. Garcia-Machado, described him as being in a quiet mood that night. Ms.

Alphonso testified that “he looked tired but not intoxicated.” [ 84 ] While highly suspicious, these facts are insufficient to meet the high burden of proof that must be met in a criminal prosecution.

Released: February 18, 2014 ____________________ Justice P.F. Band