WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(2) Subsection (1) does not apply
(a) in a case where the information relates to a young person who has received an adult sentence;
(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and
(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.
111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
COURT OF APPEAL FOR ONTARIO
Pepall, Paciocco and Favreau JJ.A.
BETWEEN
His Majesty the King
Appellant
and
S.S.
Respondent
Matthew Asma and Heather Fregeau, for the appellant
Michael Lacy and Bryan Badali, for the respondent
Heard: January 12, 2023
On appeal from the acquittals entered on April 28, 2022 by Justice Kathryn L. Hawke of the Ontario Court of Justice (Youth Court).
OVERVIEW
1On November 4, 2019, S.S., the 17-year-old respondent was found trapped and unconscious in the driver’s seat of a motor vehicle that had left the road before coming to rest in a ditch. The passenger-side of the vehicle was damaged extensively. Tragically, the front seat passenger, J.S., also a 17-year-old youth, died at the scene as a result of the accident.
2S.S. was charged as a young person with two criminal charges for causing J.S.’s death, both particularized as arising from S.S.’s alleged impaired driving. Count 1 alleged that S.S. committed criminal negligence in causing J.S.’s death, “to wit: [by] operating a motor vehicle while impaired”, contrary to s. 220(b) of the Criminal Code, R.S.C., 1985, c. C-46. Count 2 alleged that S.S. committed the offence of impaired operation of a conveyance, causing J.S.’s death, contrary to s. 320.14(3) of the Criminal Code.
3S.S.’s trial was conducted as a blended voir dire, in which S.S.’s application for the exclusion of evidence as the result of alleged Charter violations was conducted within the trial. (For convenience, I will refer to this blended hearing as the “trial”.) S.S. was acquitted at trial on both charges after the trial judge found section 8 Charter violations and excluded evidence that the Crown was relying on to prove that S.S was impaired by alcohol at the time of the accident.
4The Crown appeals the acquittals, arguing that the trial judge erred in her s. 8 rulings and in excluding the evidence that she did. For the following reasons, I would dismiss the appeal.
THE MATERIAL FACTS
5There were no eyewitnesses to the accident, which occurred shortly before 11:15 p.m. on a dark, wet stretch of a two-lane, semi-rural roadway with a posted speed limit of 70 km/hr. The trial judge found that prior to coming to rest, S.S. applied the brakes and the vehicle momentarily skidded for approximately 37 metres before leaving the roadway on the opposite side of the oncoming lane, sliding on grass, and then coming to rest in a ditch. Some of the passenger-side undercarriage, the rear axel including the rear passenger-side wheel, and parts of the back seat, littered the roadway after being torn away. It is unclear precisely where or how this damage occurred, but the vehicle may have struck a culvert as it descended into the ditch.
6There was no direct evidence presented as to S.S.’s manner of driving prior to the accident. Nor did the Crown present expert evidence to establish the speed the vehicle had been travelling at the time of the accident. The Crown asked the trial judge to infer based on common sense and life experience that the vehicle must have been travelling between 100 and 200 km/h, but the trial judge declined, reasoning that it would be speculative to do so.
7P.C. Sagl was the first officer at the scene, arriving at 11:23 p.m. By the time she arrived an ambulance crew was already attending to the two occupants of the vehicle, and a second ambulance had been requested and dispatched. P.C. Sagl located a backpack. She testified that it was near the vehicle and contained a bottle of alcohol with a lid on it. She then identified the backpack from a photograph that appeared to show the backpack not near the vehicle as she had testified but on the shoulder area of the roadway. Sgt. Byford, who had arrived on scene minutes after P.C. Sagl, testified that he had observed the backpack on the roadway.
8After being removed from the vehicle, S.S. was placed in the back of an ambulance. S.S. was immobilized and was wearing a neck brace. At 11:50 p.m., on Sgt. Byford’s instructions, P.C. Sagl got into the back of the ambulance for the purpose of investigating whether S.S. was impaired.
9P.C. Sagl, who was in uniform, accompanied the occupants to the hospital. She sat in the back of the ambulance closer to the driver’s cab and did not identify herself to S.S. or announce her presence. The two paramedics who were also in the back of the ambulance were in uniform.
10Ms. Lemcke was one of the paramedics who attended to S.S. By the time of trial, she had little recall of the relevant events. Her memory was not refreshed by an Ambulance Call Report, which was presented as a lettered exhibit.1 Ms. Lemcke testified that she asked S.S. questions for the purpose of assessing S.S.’s medical condition. In response to those questions S.S. made statements about the speed the vehicle was travelling and his alcohol consumption. The evidence presented at the trial about the content of those statements had generic similarities but some differences in detail. The Ambulance Call Report that Ms. Lemcke prepared recorded non-verbatim responses, including that S.S. reported the “vehicle [was] travelling 120 km/hr”, and that S.S. “initially stated he had drank ‘a lot’ enroute and then stated it was 4 drinks at a house but unable to recall (beer vs liquor)”. The Ambulance Call Report also recorded that there was no obvious smell of alcohol present. P.C. Sagl’s recollection of the statements S.S. made differed somewhat from the Ambulance Call Report. P.C. Sagl testified that she overheard S.S. telling the paramedics that “he had been drinking and was travelling approximately 100 to 120 kilometres an hour” and that “he had approximately four drinks.”
11At 12:00 a.m., P.C. Sagl arrested S.S. and read S.S. the caution and advised S.S. of the right to counsel. She also gave S.S. a breath demand and then a blood sample demand. She testified that the ambulance arrived at the hospital at 12:12 a.m. Shortly after, blood samples were taken for medical purposes.
12In her discussions with medical staff, P.C. Sagl learned that S.S. was a youth, something she had not previously been aware of, and at 1:25 a.m. she provided S.S. the youth caution and right to counsel. Then she questioned S.S. about the other occupant of the vehicle. Approximately one hour later she called duty counsel on S.S.’s behalf, and between 2:50 a.m. and 3:06 a.m., S.S. spoke to duty counsel.2
13In the meantime, P.C. Alszegi, a qualified breath technician who had been dispatched to the hospital arrived at 12:46 a.m. and began to ready the approved instrument in order to receive samples of S.S.’s breath for analysis. He testified that at 3:02 a.m. he spoke to P.C. Sagl and “received grounds from her which include all the necessary information [for him] to continue her investigation and conduct the breath test…” He testified “my grounds were complete with Constable Sagl at 3:22 a.m.”
14In addition to the information that he received from P.C. Sagl, P.C. Alszegi made observations of his own which contributed to his grounds. In particular, P.C. Alszegi said that he detected a light odour of alcohol from S.S.’s breath, observed bloodshot eyes, and found S.S. to be in a “confused”, “indifferent” and “sleepy” state, speaking in a “low tone, very quiet”.
15At 3:46 a.m., P.C. Alszegi took custody of S.S., and at 3:52 a.m. he read S.S. a breath demand. At 3:58 a.m. and 4:23 a.m., S.S. provided P.C. Alszegi with two samples of his breath. Both breath readings showed blood alcohol levels below the legal limit of 80 milligrams of alcohol in 100 millilitres of blood, but because of the delay in securing the samples the readings could not be relied upon, without expert evidence, as proof of S.S.’s blood alcohol content at the time of driving.
16On November 6, 2019, D.C. Davis applied for and obtained a search warrant for the medical blood samples that had been secured from S.S. at the hospital, as well as a production order for the medical records. He executed the search warrant and the production order the next day and furnished the blood samples and the hospital records to the Centre for Forensic Sciences with a view to obtaining an expert report relating to S.S.’s blood alcohol concentration at the time of the accident.
17The trial judge noted deficiencies in both the search warrant and production order documentation that had been used to obtain the hospital blood samples and hospital records. In both instances the Appendices to the Information to Obtain (“ITO”) were not sworn to be the Appendices to the ITO; Appendix B was missing from the ITO for the production order; the jurat for the production order was incomplete; and Appendix C in both ITOs was sworn separately from the affidavit it accompanied. The trial judge nonetheless found that the documents before her were the ones that were used when D.C. Davis appeared before the Commissioner of Oaths, but commented, “I do not condone the carelessness exhibited prior to submission to the Justice of the Peace”.
18She granted leave to S.S.’s counsel to cross-examine D.C. Davis on the ITOs. The ITOs contained the same grounds, so only one of the ITOs was focused upon. The cross-examination revealed that the claim made by D.C. Davis in the Background section of the ITOs that S.S. was “exhibiting signs of impairment” when S.S. was arrested, was not supported by P.C. Sagl’s notes, which D.C. Davis relied upon in preparing the ITOs. The trial judge found that D.C. Davis also “took some liberties” in the Background section relating to his own conclusions relevant to the speed of the vehicle and the force with which it struck two trees, and he swore that, “There was a backpack containing an open container of alcohol located in close proximity to the vehicle.” He swore this latter assertion to be true even though he could not say where the backpack was actually located based on the photographs he relied upon, nor did he have support for his claim that the container of alcohol was open. He also failed to mention things that may have suggested an alternative explanation for the accident, namely, the road, weather, and lighting conditions.
19D.C. Davis did not prepare a Report to Justice after the execution of the search warrant, which he was legally obliged to do.
20P.C. Sagl testified as a key witness. The trial judge did not find her to be credible after concluding that P.C. Sagl had provided four different versions of her grounds for making the breath demand: (1) when testifying in chief; (2) when she was cross-examined; (3) when describing her grounds to P.C. Cutler, the Officer in Charge of the investigation, during a phone call from the hospital; and (4) when describing her grounds to P.C. Alszegi. The trial judge found that these inconsistencies “severely damaged” her credibility.
21More specifically, the trial judge did not believe P.C. Sagl’s testimony that she subjectively believed that she had grounds to make the breath demand, a point I will develop below. Indeed, the trial judge found that P.C. Sagl “knowingly provided misleading and untrue grounds to P.C. Alszegi, while also knowing that he was the qualified breath technician, who could be expected to act on these grounds and conduct a warrantless search by having S.S. provide a breath sample.” She based this finding, in part, on her conclusion that P.C. Sagl provided P.C. Alszegi with a significantly different account of her grounds than she provided in court, including by altering the timing of when she said she smelled alcohol on S.S.’s breath, from during S.S.’s arrest to before his arrest, and by falsely adding slurred speech, a common indicium of impairment.
22In her Charter ruling the trial judge made the following relevant holdings:
S.S. had a reasonable expectation of privacy during the medical assessment by Ms. Lemcke in the ambulance, and it was contrary to s. 8 of the Charter for P.C. Sagl to “search and seize” S.S.’s communications “made as part of a medical assessment”, and “observations of S.S. during the same medical assessment” (emphasis in original).
P.C. Sagl did not have grounds to make a breath demand pursuant to s. 320.28(1) of the Criminal Code because her claim to subjectively believing that she had reasonable and probable grounds is not credible, therefore the search and seizure of S.S.’s breath contravened s. 8 of the Charter.
P.C. Alszegi’s breath demand is not a “fresh start”. The “intentionally misleading” information that P.C. Sagl provided to P.C. Alszegi is excised from his grounds, and his own observations do not provide objectively reasonable and probable grounds for the search and seizure of S.S.’s breath samples.
The search warrant and production order are quashed. Misleading evidence in the ITOs and information that was obtained in violation of the Charter is excised from the ITO, and the information that remains is insufficient to provide reasonable and probable grounds for these orders.
The failure to provide a Report to a Justice on the search warrant is contrary to s. 8 of the Charter.
In the circumstances, the following evidence must be excluded from evidence pursuant to s. 24(2), because its admission would bring the administration of justice into disrepute:
o The “[u]tterances by S.S. during a medical assessment” (emphasis in original)
o The “observations of S.S. during the medical assessment” (emphasis in original)
o The results of the breath tests
o The blood samples, and
o The hospital records.
23The trial judge went on to find that even if she had not excluded the hospital records pursuant to s. 24(2), the Crown failed to establish the admissibility of those records because it failed to lead evidence to demonstrate their admissibility pursuant to a hearsay exception.
24After making the passing observation that no evidence had been presented as to where the Ambulance Call Report document came from, she exercised her residual discretion to exclude the otherwise admissible utterances in the Ambulance Call Report. The Crown has not challenged that decision.
25Dr. Mayers of the Centre for Forensic Sciences, an expert toxicologist, provided evidence for the Crown as to S.S. ‘s blood alcohol readings at the time of the accident, which he estimated to be between 79 and 111 milligrams of alcohol in 100 millilitres of blood, thereby straddling the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. Dr. Mayers arrived at this opinion by “reading back” the blood alcohol content contained in the blood samples that had been taken from S.S. for medical purposes, and that D.C. Davis seized from the hospital pursuant to the search warrant. The trial judge held that she could not rely on this testimony because of her finding that the blood samples Dr. Mayers used had been unconstitutionally obtained pursuant to the defective warrant.
26The trial judge then examined what remained of the Crown’s case. She found that she could not infer consumption of alcohol by S.S. from the presence of alcohol in the backpack nor could she infer from the “momentary skidding” that there was even slight impairment in S.S.’s ability to operate the motor vehicle. She therefore concluded that the charges as particularized had not been proved, nor was the included offence of dangerous driving causing death established. Hence the acquittals.
THE ISSUES
27I will address the issues raised by the Crown in the following order:
A. Did the trial judge err in finding that P.C. Sagl’s observations in the ambulance violated section 8 because there was no reasonable expectation of privacy?
B. Did the trial judge err in finding that the P.C. Sagl’s breath demand constituted a section 8 violation?
C. Did the trial judge err in finding that the breath tech, P.C. Alszegi’s breath demand was invalid?
D. Did the trial judge err in finding that the search warrant and production order could not have issued?
E. Did the trial judge err in excluding the evidence under s. 24(2)?
28Since I would not give effect to any of these grounds of appeal, I will not be addressing the additional Crown argument that errors made by the trial judge had a material bearing on the acquittal, thereby warranting a retrial pursuant to the principles in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609 at paras. 14-16.
A. Did the trial judge err in finding that P.C. Sagl’s observations in the ambulance violated section 8 because there was no reasonable expectation of privacy?
29A search or seizure will not occur within the meaning of s. 8 of the Charter unless investigative state conduct intrudes upon a Charter claimant’s reasonable expectation of privacy: R. v. LaChappelle, 2007 ONCA 655, 226 C.C.C. (3d) 518, at paras. 34-35, leave to appeal dismissed, [2008] S.C.C.A. No. 32272. The trial judge held that S.S. had a reasonable expectation of privacy while being medically examined in the back of the ambulance. She found that this reasonable expectation of privacy was violated, contrary to s. 8 of the Charter, when P.C. Sagl searched or seized communications S.S. exchanged with paramedic, Ms. Lemcke, during the course of that medical examination.
30The Crown does not take issue before us with the trial judge’s characterization of the interception by P.C. Sagl of private communications between S.S. and Ms. Lemcke as a search or seizure. This characterization is in keeping with recognition by Watt J.A. that “the interception of private communications constitutes a search or seizure”: R. v. Doroslovac, 2012 ONCA 680, 112 O.R. (3d) 696, leave to appeal refused, [2013] S.C.C.A. No. 35126, at para. 29, citing R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30.
31The Crown argues instead that the trial judge erred in finding that S.S. had a reasonable expectation of privacy by: (1) failing to consider or follow this court’s “binding” precedent of LaChappelle which the Crown submitted holds that “no reasonable expectation of privacy exists in innocuous information shared in an ambulance and observed by a police officer”; and (2) finding an expectation of privacy by S.S. in the ambulance at the material time that was not proved and would not be reasonable, in the circumstances of this case.
32For the following reasons I would not give effect to these grounds of appeal. I will begin by elaborating on the trial judge’s reasoning.
33As I have described, S.S., who was injured in the accident, was placed in the back of an ambulance after being extricated from the damaged vehicle. Ms. Lemcke then conducted a medical examination in the back of the ambulance. The trial judge characterized Ms. Lemcke and S.S. as being in a medical practitioner-patient relationship at that time. The trial judge concluded that the verbal exchange between S.S. and the paramedic during that medical assessment was part of this overall medical assessment, a finding consistent with the testimony of Ms. Lemcke that the questions she asked were for the purpose of assessing S.S.’s condition. The trial judge also found that S.S. did not know that P.C. Sagl was present during S.S.’s medical examination in the ambulance and S.S. was not under police detention.
34Based on these factual findings, the trial judge held that in all of the circumstances S.S. had a reasonable expectation of privacy during that medical examination such that s. 8 of the Charter was violated when P.C. Sagl searched and seized the communications exchanged while that medical examination was underway.
35Because of this Charter violation the trial judge held that the communications had to be excluded from consideration in assessing P.C. Sagl’s grounds for the breath demand and had to be excised from the search warrant information.
36As indicated, I would not give effect to the Crown’s argument that LaChappelleis binding authority that there is no reasonable expectation of privacy in the circumstances of this case. LaChappelledoes not establish a Charter-free zone in the back of ambulances. As the Crown conceded during oral argument, the determination of whether a reasonable expectation of privacy exists requires a case-specific, contextual analysis. That is how Rosenberg J.A. resolved the “reasonable expectation of privacy” issue in LaChappelle. At para. 34, he quoted Sopinka J. in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 at p. 293, relating to the kinds of factors to consider:
Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained, and the seriousness of the crime being investigated, allow for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement. It is, then, necessary to apply this contextual approach to the facts of the case at bar.
37After quoting this passage, Rosenberg J.A. engaged in a case-specific evaluation of the “Plant factors” before upholding the trial judge’s decision in LaChappelle. In finding that LaChappelle did not have a reasonable expectation of privacy in the circumstances of that case, he relied upon the police officer’s “non-intrusive presence [in the ambulance during the investigation of a serious offence] with the consent of the ambulance personnel”, as well as the officer’s observation of a “kind of information that was not of a highly confidential nature” – namely, the fact that Mr. LaChappelle responded with one-word answers and gestures: LaChappelle, at paras. 36-38.
38Therefore, LaChappelle is not binding authority on whether S.S. had a reasonable expectation of privacy. It is a case that turned on its own facts. The trial judge clearly understood this. Although she did not expressly address the Crown’s arguments to the contrary, she correctly concluded that the issue of S.S.’s reasonable expectation of privacy should be determined based on the specific circumstances before her.
39Nor am I persuaded by the Crown’s second argument that the trial judge erred in reaching the conclusion that she did, after undertaking that case-specific evaluation. I reject the Crown’s submission that an expectation of privacy by S.S. in the ambulance at the material time was not proved and would not be reasonable.
40Naturally, S.S. did not claim any personal right in the seized information, nor did S.S. advance any territorial privacy claim. At its heart, S.S. was making an informational privacy claim relating to the communications exchanged during the medical examination. An “information privacy” claim is made where an individual asserts the right “to determine for themselves when, how, and to what extent information about them is communicated to others”: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 23; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para 66. In R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, Deschamps J. explained that “the appropriate question [where an informational right of privacy is being claimed] is whether the information is the sort that society accepts should remain out of the state’s hands because of what it reveals about the person involved, the reasons why it was collected, and the circumstances in which it was intended to be used.” It is helpful to begin with the latter two considerations – the reasons why the information was collected, and the circumstances in which it was intended to be used – before considering the impact of what the information revealed about S.S.
41In terms of the “reasons why [the information] was collected”, the trial judge concluded that this occurred as part of a medical examination being conducted to ensure S.S.’s health. This finding was supported by the evidence. The expectation of privacy in information exchanged for medical treatment is significant given that the patient “is forced to reveal information of a most intimate character to … protect his life or health”: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 433. In this case, S.S., a young person, just having been injured in a car accident, answered questions posed by a paramedic for the purpose of securing required medical attention, thereby creating communicated information that S.S. may well not otherwise have provided.
42The Crown argues that any reasonable expectation of privacy in information exchanged in ambulances for health care purposes is diminished because of the combined effect of disclosure exceptions in provincial privacy legislation,3 that together permit a health information custodian within a municipal service to disclose information to a Canadian law enforcement agency to aid in an investigation. In the Crown’s submission, this legislation would authorize the ambulance service to release the Ambulance Call Report containing the results of S.S.’s medical examination to the police, thereby undercutting S.S.’s claim to a reasonable expectation of privacy.
43I need not comment on the Crown’s interpretation of the legislation to reject this submission. Even if it can be said that the disclosure exception the Crown relies upon diminishes, in some measure, the relevant expectations of privacy, it does not do so materially. The legislation relied upon by the Crown applies solely to municipalities. Surely the reasonableness of S.S.’s expectation of privacy does not turn on whether the ambulance that attended happened to be municipally owned.
44More importantly, there are general problems with the Crown’s submission. In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 73, Cromwell J. recognized that the purpose of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5, a privacy statute, is to increase the protection of personal information, a proposition equally true of the statutes relied upon by the Crown in this case. It would defeat the operation of such statutes if law enforcement disclosure provisions were treated as equivalent to powers of search or seizure: Spencer, at paras. 71, 73. Yet that would be the effect of treating the law enforcement disclosure provision as defeating S.S.’s reasonable expectation of privacy, thereby permitting a search or seizure that may otherwise be unlawful.
45In order to prevent disclosure exceptions in privacy legislation from playing this kind of role, this court has cautioned that disclosure exceptions are not to be interpreted in a way that makes privacy legislation “‘virtually meaningless’ in the context of an ongoing police investigation”, nor should disclosure exceptions be taken as defeating the reasonable expectations of privacy recognized in the legislation as a whole: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 103, 111. After all, disclosure exceptions exist not to deny privacy interests, but to protect persons who disclose private health care information pursuant to those exceptions from being prosecuted for breach of the statute.4 In my view, the Crown is placing an importance on its claimed disclosure exception that such an exception would not properly bear.
46Moreover, even if the existence of a disclosure exception can be said, in some measure, to diminish an expectation of privacy, “a reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 9.
47I am therefore satisfied that the disclosure exemption that the Crown claims does not play a significant role in determining whether S.S. had a reasonable expectation of privacy. In my view, the trial judge was correct when assessing S.S.’s reasonable expectation of privacy in giving the weight that she did to the fact that the information seized by P.C. Sagl was provided as part of a medical examination being conducted to ensure S.S.’s health.
48With respect to the third Gombocfactor for consideration in assessing a reasonable expectation of informational privacy – “the circumstances in which [the information] was intended to be used” – the trial judge found that the information in question was intended to be used for the purpose of S.S.’s care. In this context, the trial judge’s finding, again supported by the evidence, that S.S. would not have known that P.C. Sagl was in the ambulance, takes on significance. S.S. had no reason to believe that the answers shared with the paramedic for health purposes were being captured by a police officer as part of a criminal investigation.
49This brings us to the remaining Gomboc consideration – what the information reveals about the person involved. I accept the Crown’s submission that information from S.S. about S.S.’s alcohol consumption and speed of driving does not relate to S.S.’s private medical conditions. I am also prepared to assume, for the sake of analysis, that such information is not core biographical information relating to S.S.’s life choices.5 But that does not, in all of the circumstances, work against the trial judge’s finding that S.S. had a reasonable expectation of privacy. The information that S.S. shared was self-incriminatory, and individuals are entitled to make a meaningful and informed choice whether to share self-incriminating information with the police or exercise their right to silence: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at pp. 23, 31; R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 97. The fact that SS. shared self-incriminatory information during a medical examination for medical purposes, not knowing that a police officer was present, underscores the importance of privacy in the circumstances of this case. In my view, the trial judge was correct in observing that S.S. lacked the knowledge required to choose whether to exercise the right to silence that would have operated had P.C. Sagl identified herself to S.S.
50I recognize that there are similarities between this case and LaChappelle, most notably that in both cases ambulance attendants consented to the presence of the police officers, and that the presence of the police officers was unobtrusive. I am nonetheless persuaded that the factors I have just identified not only distinguish this case from LaChappelle, but also provide a firm basis for the trial judge’s reasonable expectation of privacy finding. I see no palpable and overriding errors in the factual findings relied upon by the trial judge to find a reasonable expectation of privacy in the information seized, nor am I persuaded that her conclusion is incorrect.
51I would reject the Crown’s appeal of the trial judge’s finding that the seizure of this information by P.C. Sagl breached S.S.’s Charter rights.
B. Did the trial judge err in finding that P.C. Sagl’s breath demand constituted a section 8 violation?
52The Crown makes two arguments in support of its submission that the trial judge erred in finding that P.C. Sagl’s breath demand constituted a s. 8 Charter violation.
53First, it argues that even if P.C. Sagl did not have reasonable grounds to make a breath demand, s. 8 was not violated because no evidence was obtained as a result of P.C. Sagl’s breath demand and therefore the breath demand was not a “search” within the meaning of s. 8. This argument is premised on: (1) the assertion that the breath samples that S.S. ultimately provided were in response to the subsequent demand made by P.C. Alszegi, the breath tech, and not in response to the breath demand made by P.C. Sagl; and (2) the legal theory that a breath demand is a search only if it produces breath samples. I would reject both premises, and therefore the argument itself.
54The assertion that S.S. provided the breath samples pursuant to P.C. Alszegi’s breath demand and not P.C. Sagl’s breath demand reflects a mischaracterization of the legal nature of a breath demand. In R. v. Townsend, 2007 ONCA 332, 46 M.V.R. (5th) 159, at para. 1, this court affirmed that a Criminal Code breath demand imposes “a continuing demand that [remains] in force until complied with”. When S.S. provided the samples to P.C. Alszegi, S.S. was therefore satisfying the ongoing legal obligation that P.C. Sagl’s breath demand imposed.
55It is also worth mentioning that the general implications of the Crown’s argument are undesirable, even for the Crown. If a first demand loses its effect where a second demand has been made, it follows that an accused person could not be convicted of an offence of failing or refusing to provide a breath or blood sample in response to an invalid second demand, even if the first demand was valid. Fortunately, this is not the law: R. v. Farias, [2021] O.J. No. 4359 (C.J.), at paras. 28-29; R. v. Crump, 2017 ONCJ 633, at paras. 31-35; R. v. Turner, 2010 ONCJ 478, at paras. 7-9, citing R. v. Paramsothy, [1996] O.J. No. 4430 (C.J.), at paras. 5-6 (other citations omitted); R. v. Gieg, 2012 ABPC 157, at paras. 45-52; R. v. Smith, 2009 ABPC 18, at para. 20.
56Finally, in the circumstances of this case, the attempt to treat P.C. Sagl’s demand as irrelevant because of P.C. Alszegi’s subsequent demand is artificial, as the two demands were inextricably linked. P.C. Sagl’s demand and the associated arrest provided the legal mechanism that brought S.S. before P.C. Alszegi, who derived the grounds for his demand in material part from what P.C. Sagl told him about her grounds. I agree with the trial judge that it is not possible to insulate P.C. Sagl’s demand from Charter review because a second demand preceded the provision of the samples.
57I therefore reject the Crown’s first premise, that P.C. Sagl’s breath demand did not result in the samples that were provided. It clearly did.
58Although this alone is enough to dismiss the Crown’s argument that no search occurred, I also reject the Crown’s second premise for this argument – that a breath demand is a search only if it produces breath samples. If a search within the meaning of s. 8 of the Charter does not occur until evidence has been obtained, the distinction between a search and a seizure would disappear and s. 8 would offer no protection in the case of an unsuccessful search, such as a strip search or the search of a person’s home that yields no evidence.
59As I described above, whether investigative state conduct is a “search” within the meaning of the Charter depends on whether the state examination intrudes upon a reasonable expectation of privacy. In my view, where a legally enforceable demand for breath samples has been made pursuant to s. 320.28(1) of the Criminal Code compelling a subject to yield a sample of their breath, a state examination process that intrudes upon a reasonable expectation of privacy has been triggered and a search is underway.
60I therefore reject the Crown’s submission that P.C. Sagl’s breath demand cannot form the basis for a s. 8 Charter violation.
61I also reject the Crown’s second, alternative submission that, if P.C. Sagl’s demand was a search she had sufficient grounds to make the demand. The trial judge found that P.C. Sagl did not have the subjective grounds to make the demand. As Sopinka J. stated in R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at p. 284, “[t]he existence of reasonable and probable grounds entails both an objective and a subjective component.” Therefore, even if the Crown is correct and P.C. Sagl had sufficient information to form a reasonable conclusion that she had probable grounds to make the breath demand, her demand would still be illegal and therefore unconstitutional because P.C. Sagl lacked the subjective grounds for that demand.
62The Crown attempted to overcome this hurdle by arguing that the trial judge’s finding that P.C. Sagl lacked subjective grounds was contingent on her editing out of the observations that P.C. Sagl made during the medical examination in the back of the ambulance. The Crown argues that if the trial judge erred in editing out those observations as contrary to s. 8, her finding that P.C. Sagl lacked subjective grounds would have to fall.
63I do not read the trial judge’s decision as the Crown does. The trial judge expressly found that on “a full analysis of these grounds without editing out the subject matter of the above s. 8 Charter breach” she was “unable to find, on a balance of probabilities, that the Crown has satisfied the subjective part of the two-part test” for reasonable and probable grounds. The trial judge was entitled to come to that decision.
64I see no basis for interfering with the trial judge’s finding that the demand that P.C. Sagl made pursuant to s. 320.28(1) was unlawful, and therefore unconstitutional. I would dismiss this ground of appeal.
C. Did the trial judge err in finding that the breath tech, P.C. AlszEgi’s breath demand was invalid?
65The Crown argues that even if P.C. Sagl did not have reasonable and probable grounds for the demand she made, P.C. Alszegi had reasonable and probable grounds for his demand, and the trial judge erred in finding otherwise.
66As I will explain, the Crown may be correct about this, but the exclusion of the breath demand provided to P.C. Alszegi from evidence does not depend on the finding that P.C. Alszegi lacked reasonable and probable grounds for the search. The trial judge found, in the alternative, that even if P.C. Alszegi had reasonable and probable grounds for his breath demand, the breath results would still have to be excluded because of P.C. Sagl’s Charter breach, a conclusion that, in my view, she was entitled to make.
67I will begin with whether the trial judge erred in finding that P.C. Alszegi lacked reasonable and probable grounds. In that regard, the trial judge accepted that P.C. Alszegi subjectively believed that he had grounds. She found, however, that in the “unique circumstances” of this case, the information he received from P.C. Sagl had to be excised from consideration because P.C. Sagl had deliberately misled P.C. Alszegi about her grounds, knowing that P.C. Alszegi would rely upon what she told him in determining whether he had grounds. She said that this approach had the benefit of enabling the sufficiency of P.C. Alszegi’s own grounds to be assessed, and she found his own grounds to be inadequate.
68The Crown does not take issue with the trial judge’s conclusion that P.C. Alszegi’s own observations were inadequate to provide reasonable and probable grounds. Instead, the Crown argues that the trial judge erred in assessing the sufficiency of P.C. Alszegi’s grounds by excising from consideration the information that P.C. Sagl had shared with him. The Crown submits that the material question is not whether the information P.C. Alszegi acted upon was accurate, but whether he had a “reasonable belief”: R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22, at para. 40; R. v. St. Clair, 2021 ONCA 895, 408 C.C.C. (3d) 117, leave to appeal refused, [2022] S.C.C.A. No. 40270, at para. 26. The Crown concedes that an officer “may not ignore signs that other officers may be misleading them or omitting material information” and may not rely on information that they “knew or ought to have known [to be] false”: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 123; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41. But the Crown argues that in forming reasonable grounds an officer may rely upon information known to them that they subjectively and honestly believe: Pires, at para. 41. And in this case, P.C. Alszegi’s evidence was that he believed what P.C. Sagl had told him.
69There may be merit in the Crown’s position on this point. In the absence of a basis for concluding that P.C. Alszegi should have known that P.C. Sagl was misleading him as to her grounds, it could be that the trial judge should not have excised the information that P.C. Sagl provided him.
70On the other hand, I find the trial judge’s reasoning to be compelling. If the authority the Crown relies upon were to apply even where one police officer has intentionally misled another as to the grounds for a search or an arrest, it would be possible for a police officer who has no grounds (the “informant officer”) to provide another officer with reasonable and probable grounds simply by lying convincingly to that officer about their grounds.
71Although there is language in some of the cases suggesting that the rule relied upon by the Crown applies even where an informant officer has misled the officer whose grounds are at issue, that language is obiter and none of the cases relied upon by the Crown involve findings that the informant officer intentionally misled the officer, knowing that doing so would lead to a search. I also note that in R. v. Williams, 2022 ONCA 596, at para. 18, when applying the principles relied upon by the Crown, this court commented that there was “no suggestion” that the failure by an informant officer to communicate information that qualified the grounds for arrest “was anything other than a miscommunication”. The intimation, of course, is that the result in Williams may have been different had the informant officer intentionally misled the other officer about their grounds, as the trial judge found occurred in the “unique circumstances” of this case.
72Ultimately, in order to resolve this appeal, I do not have to determine whether one officer can base reasonable grounds on the intentionally misleading information provided by an informant officer, because in this case the trial judge gave an alternative basis for excluding the breath samples. She reasoned that, even if P.C. Alszegi had reasonable grounds, the demand provided by P.C. Alszegi was “part of [a] continuing s. 8 breach by P.C. Sagl”, and not a “fresh start”, and that the breath samples that he received from S.S. would have to be excluded in any event because of P.C. Sagl’s breach.
73I would not interfere with this finding. I have already explained why I would find that P.C. Sagl’s unconstitutional demand continued to be operative when S.S. provided the breath samples. Even though the breath samples were ultimately provided to P.C. Alszegi, subject to consideration of the “fresh start” doctrine described in R. v. Beaver, 2022 SCC 54, [2022] S.C.J. No. 54, at para. 97, the breath samples were “obtained in a manner” that violated the Charter because of P.C. Sagl’s breach.
74In my view, the trial judge was correct in finding that in this case the fresh start doctrine does not apply to sever the required “obtained in a manner” connection. The fresh start doctrine holds that “evidence will not be ‘obtained in a manner’ that breached the Charter when the police made a ‘fresh start’ from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous.” In this case, the breath samples are tightly linked to P.C. Sagl’s Charter breach, despite the demand made by P.C. Alszegi. As the trial judge found, his demand was “part of [a] continuing s. 8 breach by P.C. Sagl”. There is ample support for that finding. First, P.C. Sagl’s unconstitutional demand provided the legal basis for arranging for P.C. Alszegi to take a breath sample, in the first place. Moreover, P.C. Alszegi relied on P.C. Sagl’s unconstitutional demand in making his own demand. Indeed, on the trial judge’s findings, P.C. Sagl intentionally caused P.C. Alszegi to conduct a search by misleading him as to the grounds for doing so. There is no room in these circumstances for the application of the fresh start doctrine.
75In these circumstances the trial judge was entitled to consider whether the breath samples should be excluded because of P.C. Sagl’s Charter breach, even if P.C. Alszegi had grounds for his demand. And as I will explain below, I see no material errors in the trial judge’s s. 24(2) analysis which resulted in the exclusion of the breath samples.
76As a result, even if the trial judge did err in finding that P.C. Alszegi did not have reasonable and probable grounds for the demand he made, this error would not affect the outcome of this appeal.
D. Did the trial judge err in finding that the Search warrant and Production order could not have iSSued?
77The Crown argues that the trial judge erred in finding that the search warrant and production order should not have issued. Insofar as the production order is concerned, this ground of appeal is moot. The trial judge ruled that, independently of Charter exclusion, the evidence obtained by the production order, namely hospital records, was inadmissible because the Crown failed to lead evidence to demonstrate their admissibility pursuant to a hearsay exception.
78But even leaving this aside, the ITO used to obtain the production order was materially indistinguishable from the ITO used to secure the search warrant. I can find no error in the trial judge’s decision that the search warrant ITO, and by implication the production order ITO, failed to disclose reasonable and probable grounds.
79The Crown submits that the trial judge erred in her evaluation of reasonable and probable grounds by excising the breath sample results and the observations made by P.C. Sagl in the ambulance from the ITOs. I disagree. As I have explained, I would not interfere with the trial judge’s conclusion that P.C. Sagl’s search or seizure of the answers S.S. gave to Ms. Lemcke during the medical examination was unconstitutional, nor with the trial judge’s conclusion that the breath samples secured from S.S. were unconstitutionally obtained. It is settled law that an affiant should not include references to unconstitutionally obtained information in an ITO: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 291. See also: R. v. Mawick, 2021 ONCA 177, at para. 5; R. v. Barton, 2021 ONCA 451, 493 C.R.R. (2d) 101, at para. 7. In R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 251, Sopinka J. affirmed this, explaining:
[E]vidence obtained during a search under warrant had to be excluded under s. 24(2) where the warrant was procured through an information which contained facts within the knowledge of police as a result of a Charter violation. However, in circumstances…where the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for the reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant.
80The trial judge was therefore correct in excising from the ITO the evidence that she did. In my view, she was also correct in concluding that the grounds that remained after excision were insufficient to support the search warrant and the production order. As the trial judge observed, without the excised information there is no evidence in the ITOs that S.S. exhibited any signs of impairment, or that S.S. had even consumed alcohol. In my view, evidence of a sudden, unexplained accident with no evidence of the prior manner of driving, and the discovery of a container of alcohol in a backpack in the area of the accident that cannot otherwise be linked to the driver raises no more than reasonable suspicion, not reasonable and probable grounds. The trial judge was correct to quash the search warrant and the production order.
E. Did the trial judge err in excluding the evidence under s. 24(2)?
81I disagree with the Crown’s submission that the trial judge erred in her s. 24(2) analysis.
82First, the Crown takes issue with the fact that after describing the seriousness of P.C. Sagl’s Charter violations, the trial judge said that admitting this evidence “would have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute” (emphasis added). The Crown argues that in doing so the trial judge erred by prematurely deciding to exclude the evidence obtained through P.C. Sagl’s breaches because of the seriousness of the violations, before conducting a complete s. 24(2) balancing of the factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 85 (the “Grant factors”).
83In my view, the trial judge did not do so. The exclusionary question for the trial judge was whether admission of the evidence “would bring the administration of justice into disrepute”. In making the impugned comment, the trial judge was doing no more than recognizing that the seriousness of P.C. Sagl’s breaches favours exclusion because the seriousness of her breaches presents a “risk” that admitting the evidence may have that impact. She then went on to consider the remaining Grant factors before finding that “the admission of the evidence… will bring the administration of justice into disrepute” (emphasis added). Simply put, the Crown’s submission is based on an isolated and unduly narrow reading of one passage in a judgment, meant to be read as a whole.
84Second, the Crown argues, in effect, that the trial judge based her exclusionary decision on a material misapprehension of the evidence, namely a finding that P.C. Sagl had not mentioned slurred speech in her testimony when she had. I do not accept this submission. P.C. Sagl did not testify that she observed slurred speech. She agreed that her notes said “he’s slurring” but she did not adopt this claim by attesting that it was true. More importantly, even if this error had occurred it would not have been material. The trial judge’s findings that P.C. Sagl’s breaches were serious was wide-ranging and included the findings that she gave four different versions of her grounds, and “knowingly provided misleading and untrue grounds to P.C. Alszegi, while also knowing that he was the qualified breath technician, who could be expected to act on these grounds by having S.S. provide a breath sample.” The trial judge also found she falsely changed the point in time when she smelled alcohol to enhance her grounds. Whether P.C. Sagl testified to having observed slurred speech would not have altered the material conclusion that her breaches were serious.
85Third, the Crown argues that the trial judge erred in characterizing P.C. Sagl’s presence in the ambulance as “surreptitious”. No doubt this word connotes that something has been done clandestinely, or in a stealthy manner, and there was no evidence before the trial judge suggesting that P.C. Sagl was intending to hide her presence from S.S. In my view, nothing turns on the trial judge’s use of the word “surreptitious”, which may be nothing more than a poorly chosen adjective. Notably, the trial judge did not rely on this finding to support her conclusion that P.C. Sagl acted in bad faith. Instead, the trial judge used the term when describing how P.C. Sagl’s act of observing and capturing statements that S.S. made during the medical examination constituted a “reasonably significant state intrusion”. The impact of that breach is not affected by whether P.C. Sagl was being surreptitious or not. What matters is that, without S.S.’s knowledge, P.C. Sagl not only listened to an exchange of information during a medical examination but seized that exchange as evidence.
86Finally, the Crown argues that the trial judge erred by failing to consider that the observations P.C. Sagl made in the ambulance were discoverable by obtaining the Ambulance Call Report, which would reduce the impact of admission of her observations on the Charter protected interest of S.S. I would not give effect to this ground of appeal.
87First, I am not persuaded that the discoverability doctrine applies. In R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 66, Cromwell J. defined “discoverability” as referring to “situations where unconstitutionally obtained evidence of any nature could have been obtained by lawful means had the police chosen to adopt them.” Even if the Crown is right to suggest that the Ambulance Call Report could have been obtained pursuant to provincial privacy legislation, the Ambulance Call Report recorded Ms. Lemcke’s observations of the conversation in question, not P.C. Sagl’s. On my understanding, discoverability applies where the same evidence could have been obtained lawfully, not whenever alternative evidence from a different witness could have been obtained. In this regard, although the differences may have been slight, it is worth noting that the trial judge found that Ms. Lemcke’s observations differed from P.C. Sagl’s observations.
88Second, the Crown did not argue discoverability as a basis for including the evidence. It is not surprising that the trial judge did not mention it.
89Finally, discoverability is not determinative: Cote, at para. 70. In my view, even if the trial judge erred in this regard, discoverability would not have altered the outcome in this case. The basis for exclusion in this case rests predominantly on the seriousness and multiplicity of Charter breaches, and other regrettable police conduct.
90It is worth repeating that the trial judge found that P.C. Sagl gave untrue testimony about the indicia of impairment, including when she smelled alcohol, and knowingly misled another officer to advance the investigation. Her misconduct cascaded through the entire investigation, affecting it at every stage. When evidence is excluded in response to serious police misconduct this is done so that the court can disassociate itself from that misconduct, preserving the repute of the administration of justice. The kind of conduct I have just described ordinarily requires such disassociation. It also warrants mention that P.C. Sagl also breached the Charter by questioning S.S. immediately after advising S.S. of the rights to counsel, before S.S. had a reasonable opportunity to exercise those rights: R. v. D.(G.T.), 2018 SCC 7, [2018] 1 S.C.R. 220, at para. 2.
91The seriousness of the police misconduct in this case is not confined to P.C. Sagl. The trial judge also found that D.C. Davis “lacked due care and attention resulting in at least some negligence towards Charter standards,” concluding, “my overall impression was that he treated getting the Search Warrant and the Production Order as a pro forma process as opposed to a serious ‘judicial’ process.” The search warrant and production order applications were deficient, and the ITOs contained misleading information that appeared to make the grounds stronger, and they failed to make full and frank disclosure. This conduct, too, is gravely concerning. Even though it did not result in a finding of additional Charter breaches, it is conduct that shows that, in this investigation, the police did not exercise the care that is required of them. Moreover, additional s. 8 Charter breaches occurred when the police failed to file a Report to Justice after the search warrant was executed.
92In the circumstances I would not interfere with the trial judge’s decision to exclude the evidence she did, nor would I come to a different conclusion, even on full reconsideration.
CONCLUSION
93I would dismiss the appeal.
Released: February 27, 2023 “S.E.P.”
“David M. Paciocco J.A.”
“I agree. S.E. Pepall J.A.”
“I agree. L. Favreau J.A.”
Footnotes
- By marking the Ambulance Call Report as a lettered exhibit, the trial judge was receiving it provisionally for the purposes of the voir dire, subject to her Charter ruling at the end of the case. The Ambulance Call Report was never formally entered as trial evidence.
- No issue has been taken with this delay because S.S. was receiving medical treatment for much of it.
- The Personal Heath Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, s. 43(1)(f), permits a “health information custodian” to disclose information as authorized in the Municipal Freedom of Information and Privacy Act, R.S.O. 1990, c. M.56, s. 32(g). The Municipal Freedom of Information and Protection of Privacy Act, s. 32(g) permits an “institution” to disclose personal information in its custody to a law enforcement agency to aid in an investigation. An “institution” includes a municipality and the ambulance service in this case was municipally owned.
- It is an offence contrary to s. 72(1)(a) of the Personal Heath Information Protection Act, 2004, to disclose personal health information in contravention of the Act.
- In R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 32, in rejecting a Crown submission that information revealing criminal activity does not deserve privacy because it cannot constitute a core biographical detail, Binnie J. commented, “I would have thought, with respect, that the criminal ‘lifestyle’ of the appellant was the epicentre of what the police wanted to know and what the appellant wished to conceal.” The facts of Patrick are distinguishable. That case involved a search of garbage for evidence of ongoing criminal activity. I need not decide whether, based on similar reasoning, information about criminal activity should be characterized in an informational privacy case as core biographical detail, but I do not want to be taken as suggesting otherwise.
