Court File and Parties

Court File No.: Sudbury 120477 Date: 2013-06-26 Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Larry Schneider

Before: Justice Andrew L. Buttazzoni

Heard on: February 27 and 28, 2013

Reasons for Judgment released on: June 26, 2013

Counsel:

• Colleen Hepburn, for the Crown
• Murray H. Shore, for the accused Larry Schneider

BUTTAZZONI J.:

[1] Introduction

The accused has been charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit contrary to section 253(1)(b) of the Criminal Code of Canada. The offence is alleged to have taken place on May 4, 2012. The accused has brought an application for Charter relief on the grounds that his rights as protected by ss. 7 and 8 of the Charter have been violated. The accused seeks exclusion of all evidence obtained in violation of his Charter protected interests, specifically, the vial of blood seized pursuant to a search warrant and the results of the analysis of that blood.

[2] Procedural Background

The trial commenced with a voir dire to determine whether there has been a violation of the applicant's Charter rights and if so the appropriate remedy. The onus is on the accused on a balance of probabilities. The only witness to testify in this proceeding was the investigating officer, Constable Kewaquado.

1: EVIDENCE

1:1 Evidence of Constable Kewaquado

[3] Initial Response and Scene Investigation

On May 4, 2012 at 5:32 p.m. he was dispatched to a single motor vehicle accident involving an ATV. He arrived at 5:46 p.m. and observed the accused motionless on his back without a helmet on his head. The accused was being assisted by paramedics. He observed dried blood on the accused's chin and on the corner of his mouth. He was advised by fellow riders that the accused experienced brake failure. At 5:55 p.m. he entered the ambulance where the accused was being treated. He detected the odour of alcohol. He noted that the accused's eyes were bloodshot and red rimmed. The officer asked the accused when he last consumed alcohol and the accused indicated "a couple of hours ago". After speaking to witnesses who were at the scene and based on his own observations, the officer came to the conclusion that the accident was caused by the accused having operated his ATV at an excessive speed on an oil-covered gravel roadway. Before leaving the scene he advises his superior officer that he is investigating a "suspected" drinking and driving offence.

[4] Arrival at Hospital and Initial Arrest

The officer left the accident scene at 6:02 p.m. arriving at the local hospital at 6:20 p.m. He was accompanied to the accused's room by nursing staff. At 6:32 p.m. the officer was advised that he could enter the accused's room. Upon entering the room he could detect the odour of alcohol coming from the accused. At 6:33 p.m. the officer arrested the accused for impaired driving - not over 80. He advised the accused of his rights to counsel, provided the standard caution and made a demand of the accused that he provide a sample of his breath into an approved breathalyser machine. At this point the accused was immobilized on a backboard with a neck brace on. The accused was eventually hooked up to an intravenous unit. The officer advised the accused that he had concerns about his ability to comply with the demand. The accused did not reply. The officer had no reason to think that the accused would not co-operate.

[5] Blood Sample Taken for Medical Purposes

Officer Kewaquado remained in the company of the accused after the arrest. At 6:50 p.m. the lab technician Kelly King entered the room and took several vials of blood from the accused. The officer had no conversation with Ms. King.

[6] Accused's Spouse Arrives

At some point between 6:40 p.m. and 7:01 p.m. the accused's wife attended at the hospital. The officer observed her to be upset.

[7] Doctor's Examination and Abandonment of Breath Demand

At 7:01 p.m. Dr. Hongzinger attended and directed the officer to leave the room while he examined the accused. The officer waited behind the hospital bed curtain while the doctor conducted his examination. By 7:15 p.m. the doctor had completed his examination. The officer asked Dr. Hongzinger if the accused would be able to provide a breath sample. According to the officer the doctor said, "We wouldn't exactly know if he could do it until he tried it". The officer thought the doctor was being flippant and that his answer was ambiguous. Therefore, based on his observations of the accused in the hospital and the doctor's ambiguous answer he concluded that the accused would not be able to provide a breath sample.

[8] Blood Demand Made

At 7:25 p.m. the officer made a demand of the accused that he provide a sample of his blood pursuant to section 254(3)(a)(ii) of the Criminal Code.

[9] Release and Decision to Obtain Warrant

At 7:30 p.m. the officer released the accused unconditionally. The accused was not charged with any offence and the officer decided not to follow through with the blood demand. He thought it would be less intrusive if he simply obtained a warrant to seize one of the vials of the accused's blood. He was mindful that the accused's spouse was still upset. At the same time he realized it would be more work for him to get a search warrant.

[10] Sealing of Blood Vial

At 7:34 p.m. the officer attended at the hospital lab and spoke to technician Kelly King. At his request she produced a vial of the accused's blood. The officer affixed a CFS seal to the vial. The officer testified that he told the technician that the blood could be used for medical purposes. He also told her that he would be obtaining a warrant in order to seize the vial of blood.

[11] Storage of Blood Vial

The vial of blood was marked for police purposes and placed on a shelf in the cooler specifically dedicated for OPP use. At 7:48 p.m. the officer left the hospital.

[12] Search Warrant Obtained

On May 14, 2012 the officer obtained a warrant pursuant to section 487 of the Criminal Code. Constable Kewaquado was the affiant for the "Information to Obtain", hereinafter referred to as the "ITO". Under authority of the search warrant the investigating officer seized the vial previously secured with the CFS seal and then sent it to the Center of Forensic Sciences for analysis. The warrant was sought on the basis that the officer had reasonable grounds to believe that an offence contrary to s. 253(1)(b) of the Criminal Code of Canada had been committed as opposed to impaired driving (the offence for which the accused had originally been arrested).

[13] Charge Laid

As a result of the analysis of the accused's blood he was charged with an offence contrary to section 253(1)(b) of the Criminal Code, commonly referred to as "an over 80 offence".

2: ARGUMENTS OF THE PARTIES

[14] Accused's Submissions

The applicant submits that the investigating officer disregarded several of his Charter protected rights. He argues:

1. That the officer did not have reasonable grounds to arrest him.

2. That the unlawful arrest was followed by two unlawful demands and an arbitrary detention in the hospital.

3. That the officer violated his personal, spatial and informational privacy interests while he was being unlawfully detained. These violations enabled the officer to be present while blood was taken from the accused for medical purposes.

4. That the officer unlawfully seized a vial of the accused's blood by affixing a CFS seal to it.

5. That the Justice of the Peace would not have had grounds to believe that the offence of "over 80" had been committed if the affiant had made full and frank disclosure.

6. That given the seriousness of the multiple breaches the evidence obtained by virtue of the search warrant should be excluded notwithstanding that it is reliable and necessary for an adjudication of this case on its merits.

[15] Crown's Submissions

Not surprisingly, the Crown takes a contrary view. The Crown advances a more benevolent theme to explain much of the investigating officer's conduct. Hopefully, without oversimplifying, the Crown submits that the actions of the investigating officer were not unlawful. To the contrary, his decisions were motivated by a desire to implement the least intrusive investigative procedures in order to preserve the accused's privacy interests. The Crown submits that even if the demands were unlawful no evidence was obtained as a consequence thereof. The evidence in question was seized pursuant to a search warrant whose validity has not been undermined. Any lack of disclosure by the investigating officer to the Justice of the Peace related to the officer's speculative opinion regarding the cause of the accident and does not affect the validity of the warrant.

[16] Court's Preliminary Finding

For the reasons that follow I find that there were in fact serious breaches of the accused's ss. 8 and 9 Charter protected rights and that the evidence seized as a result of these breaches should be excluded.

2: LAWFULNESS OF ORIGINAL ARREST

[17] Legal Principles on Reasonable and Probable Grounds

I have found the Court of Appeal decision of R. v. Bush, 2010 ONCA 554 helpful in summarizing the relevant legal principles that must be considered. At paras. 36-38, Durno J., writing for the court, stated:

[36] Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.

[37] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80.' (Emphasis added.) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima facie case: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23.

[38] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, 2001 CanLII 24171 (ON CA), [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at p. 250.

[18] Further Guidance on Reasonable Grounds

At paras. 44-48 Durno J. makes the further observations:

[44] Doherty J.A. continues in Golub at para. 21:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), 1979 CanLII 17 (SCC), 48 C.C.C. (2d) 34 at 56 (S.C.C.); R. v. Hall (1995), 1995 CanLII 647 (ON CA), 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v. Proulx (1993), 1993 CanLII 3677 (QC CA), 81 C.C.C. (3d) 48 at 51 (Que. C.A.).

[45] On a subsequent occasion, Doherty J.A. found police in a drinking and driving investigation were involved in making quick but informed decisions whether there were reasonable and probable grounds: see R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75 (C.A.).

[46] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni at para. 43.

[47] There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.

[48] The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para. 17.

[19] Application to Facts: No Reasonable Grounds for Arrest

Applying the foregoing principles to the facts of this case, I come to the conclusion that Constable Kewaquado did not have reasonable and probable grounds to arrest the accused and request that he provide a sample of his breath into an approved breathalyser machine.

[20] Officer's Stated Grounds

The officer identified three factors that led him to believe he had reasonable grounds to arrest the accused for impaired driving:

1. the odour of alcohol emanating from the accused;

2. the accused's eyes were red rimmed and bloodshot; and

3. that there was a single motor vehicle collision.

[21] Significance of Officer's Opinion on Cause of Accident

As noted by Durno J., in R v. Bush, supra at paras. 54 and 57, the existence of reasonable and probable grounds is a fact based exercise dependent upon all the circumstances of the case. The fact that an accident occurred must be taken into account by the officer along with the other evidence at the scene in determining whether there are reasonable and probable grounds to arrest for impaired driving. In some cases evidence of consumption plus an unexplained accident may provide those grounds although that may not always be the case. The fact that the accident may be responsible for the observed indicia when they could have also been caused by the consumption of alcohol does not mean that the officer must disregard those indicia. The officer draws upon his personal and professional experience in evaluating the circumstances in order to determine if reasonable grounds exist.

[22] Officer's Initial Conclusion on Cause of Accident

During his evidence in chief the officer acknowledged that in the early stages of the investigation he came to the conclusion that the accident was caused, not by the consumption of alcohol, but as a result of the ATV being operated by the accused at an excessive rate of speed on an oil-covered gravel roadway. He relied on his experience, personal observations and information received from witnesses at the scene in order to come to this conclusion. The Crown was critical of the officer's conclusion preferring to describe his conclusion as a speculative opinion. With all due respect I would disagree. Constable Kewaquado is an experienced officer. Based on his on-site investigation, an experienced officer initially came to the conclusion that alcohol was not a factor in the accident. He would have been equally entitled to come to the opposite conclusion. He did not do so. Neither opinion would have been speculative unless it had been proffered without considering the evidence obtained during his investigation. While testifying in chief, Constable Kewaquado, on more than one occasion, steadfastly maintained the certainty of his opinion based on a consideration of what he learned through his investigation.

[23] Cross-Examination and Credibility Issues

During the officer's cross-examination, however, the Crown attempted to undermine his conclusion and eventually the certainty of his opinion began to waver in response to the Crown's suggestive cross-examination. While I do not in any way suggest any impropriety on the part of the Crown in cross-examination, the use of highly suggestive questions diminished the reliability and credibility of the officer's subsequent answers.

[24] Leading Questions and Reliability of Evidence

Of significance in this voir dire is that the investigating officer, typically a Crown witness, was called in chief by the accused. The accused was obliged to call the officer because he bore the onus in this Charter application. Accordingly, the Crown was entitled to cross-examine him through the use of leading questions. At one point the Crown asked the investigating officer why did not include his conclusion regarding the cause of the accident in the ITO. The officer testified that he did not do so because he did not have a statement from one of the witnesses, Mr. Haan outlining the exact details of the accident. Obviously not content with this answer the Crown then suggested to the officer that the reason he did not include it was because he too realized that his opinion regarding the cause of the accident was mere speculation. The officer at that point agreed with the extremely leading question. Given the manner in which this evidence was elicited, I put little or no weight to the officer's tacit agreement with the Crown's highly suggestive question on a very important issue.

[25] Caution on Use of Leading Questions

Watt J. in the case of R. v. Clancey, [1992] O.J. No. 3968 at para. 49, makes the following instructive observation regarding use of leading questions with friendly witnesses:

…The examination-in-chief shall commence as in the usual course, subject to re-application upon a proper evidentiary foundation. In cross-examination, however, Crown counsel ought be mindful of the observations of Bergman, J.A. in Deacon, supra, at p. 319 C.C.C., which, varied to suit the present circumstances, are these:

"Where a witness called by the accused shows such a bias in favour of the prosecutor ..., it should be apparent to Crown counsel that putting words in the witness's mouth is not conducive to eliciting the truth or impressing the judge."

[26] Officer's Credibility Assessment

At this point in the officer's evidence two things became abundantly clear to the Court. The officer finally understood what the Crown was getting at and decided to tell her exactly what she wanted to hear and that the omission of this opinion from the ITO was not based on the officer's genuinely held belief that his opinion was mere speculation.

[27] Preference for Officer's Original Evidence

To the contrary, I prefer the officer's original evidence in chief that he formed the reasonable conclusion that the accident was not alcohol related and that the non-disclosure in the ITO was due to his belief that he needed a detailed statement from Mr. Haan. Accordingly, his grounds for arrest must be assessed in light of this opinion. At the time of the accused's arrest this was no longer an investigation of an unexplained accident.

[28] Conclusion on Arrest: Unlawful

Thus, the remaining factors, an odour of alcohol and red-rimmed/bloodshot eyes on an injured driver do not objectively provide reasonable grounds to arrest for impaired driving. The arrest was therefore unlawful.

[29] Additional Consideration: Odour at Hospital

Before leaving this issue I would note as well the officer's evidence that when he left the accident scene at 6:02 p.m. he only had a "suspicion" that a drinking and driving offence had been committed – not reasonable grounds for such a belief. I would agree with that assessment. The only additional information acquired by the officer after leaving the accident scene and the time of arrest (6:33 p.m.), was the observation that the accused still had the odour of alcohol on his breath at the hospital. The officer testified that based on his experience and training the presence of the odour of alcohol on the accused's breath at the hospital was indicative of higher alcohol consumption.

[30] Odour of Alcohol Not Probative of Impairment Level

The officer's observation of the odour of alcohol at the hospital does not elevate his suspicion to reasonable and probable grounds. The intensity or degree of an odour of alcohol is not capable of being considered for establishing the relative amount or degree of alcohol intake or impairment to drive or have lawful care or control of a motor vehicle. See, R. v. Tavone, [2007] O.J. No. 3073, (S.C.) at para. 11; R. v. Kumric, [2006] O.J. No. 4886 (S.C.) at para. 15.

[31] Inconsistency: Arrest for Impaired but No Charge

I also note that the accused was never charged with impaired driving. In his cross-examination the investigating officer testified that he never charged the accused with impaired driving because he did not have the grounds to do so. I cannot understand how an officer can develop reasonable grounds to believe that a person has committed the offence of impaired driving, subsequently arrest that person for impaired driving but then come to the conclusion that he had no grounds to charge the person.

[32] Conclusion: Suspicion Only, Not Reasonable Grounds

The officer had a suspicion that alcohol might have been involved, nothing more. This clearly would have been a proper case for an ASD demand. Because the officer did not have reasonable grounds to arrest the accused, the subsequent breath and blood demands were also unlawful. The officer's decision to pursue a breath demand does require some further analysis.

3: THE ABANDONMENT OF THE BREATH DEMAND AND THE PURSUIT OF A BLOOD DEMAND

[33] Blood Demand Made

At 7:25 p.m. the officer made a blood demand of the accused pursuant to s. 254(3)(a)(ii) of the Code.

[34] Legal Requirements for Blood Demand

A police officer may rely upon this subsection of the Criminal Code in circumstances where the officer "has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impractical to obtain a sample of breath." In this case, I come to the conclusion that the officer did not have such reasonable grounds.

[35] Factors Relied Upon by Officer

The officer decided to make a blood demand based on the following factors:

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

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

c) the accused was wearing a neck brace;

d) the accused was immobilized on his back;

e) the accused had limited mobility in his neck.

[36] Analysis of Doctor's Response

The doctor did not testify at this hearing. While the officer may have subjectively believed that the doctor's answer was ambiguous, I find that, when viewed objectively, there was nothing ambiguous about it. Clearly the doctor was leaving it open to the officer to have the accused try to provide a sample of his breath. There was no evidence suggesting that the doctor told him that the accused would be incapable of providing a sample or that the medical constraints made it impractical to provide a breath sample. Notably, the officer did not follow up with any other questions in order to remove the ambiguity that existed in his mind. Before embarking on a more invasive investigative technique, the officer should have attempted to clarify the doctor's answer if he found it ambiguous. While the officer may have perceived the answer to be flippant, there was nothing ambiguous about it. Even if the arrest had been lawful, and I have found that it was not, the officer did not have the requisite reasonable grounds required to pursue a blood demand.

4: WAS THERE A VIOLATION OF THE ACCUSED'S PERSONAL, SPATIAL OR INFORMATIONAL PRIVACY INTERESTS

[37] Charter Protection of Privacy

In R. v. Dyment, 1988 CanLII 10 (SCC), [1988] S.C.J. No. 82 at paragraph 15, La Forest J., writing for the majority reaffirmed that the Charter was a purposive document to be construed as such and interpreted generously. He further recognized, "that a major, though not necessarily the only, purpose of the constitutional protection against unreasonable search and seizure under s. 8 is the protection of the privacy of the individual."

[38] Right to Be Secure Against Unreasonable Search and Seizure

It should also be noted that s. 8 does not merely prohibit unreasonable searches and seizures, it goes further and guarantees the right to be secure against unreasonable search and seizure. [See Dyment, supra at para. 18.]

[39] Informational Privacy

La Forest J. recognized that section 8 of the Charter serves to protect personal, spatial and informational privacy concerns. With respect to informational privacy, La Forest J., at paragraph 22 stated:

Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act, S.C. 1980-81-82-83, c. 111.

[40] Privacy in Hospital Settings

At paragraph 29, La Forest J. makes it clear that Courts must strive to ensure that privacy interests of vulnerable individuals in a hospital setting are not compromised by virtue of loose agreements between hospital staff and law enforcement officials:

… This is obviously necessary if one considers the vulnerability of the individual in such circumstances. He is forced to reveal information of a most intimate character and to permit invasions of his body if he is to protect his life or health. Recent trends in health care exacerbate the problems relating to privacy in the medical context, particularly in light of the health-team approach in an institutional setting and modern health information systems. If the health-team approach gives a patient easy access to a wide range of medical services, it inevitably results in the fragmentation of the classical doctor-patient relationship among a team of medical and para-medical personnel. The dehumanization that can result has led some hospitals in the United States to appoint an ombudsman for patients. The Report of the Commission of Inquiry into the Confidentiality of Health Information (The Krever Commission), 1980, has drawn attention to the problem in the law enforcement context in the following passage, vol. 2, at p. 91:

... the primary concern of physicians, hospitals, their employees and other health-care providers must be the care of their patients. It is not an unreasonable assumption to make that persons in need of health care might, in some circum-stances, be deterred from seeking it if they believed that physicians, hospital employees and other health-care providers were obliged to disclose confidential health information to the police in those circumstances. A free exchange of in-formation between physicians and hospitals and the police should not be encouraged or permitted. Certainly physicians, hospital employees and other health-care workers ought not to be made part of the law enforcement machinery of the state. [Emphasis added.]

Under these circumstances, the demands for the protection of personal privacy become more insistent, a truth that has been recognized by governments. I look upon the Hospitals Act and its regulations not so much as justifying the need for privacy in this case but rather as a testimony that such protection is required. Under these circumstances, the courts must be especially alert to prevent undue incursions into the private lives of individuals by loose arrangements between hospital personnel and law enforcement officers. The Charter, it will be remembered, guarantees the right to be secure against unreasonable searches and seizures.

[41] Supreme Court Confirmation in Colarusso

This same approach was again followed by our Supreme Court in R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] S.C.J. No. 2 at paragraph 70, the Court stated:

Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, teaches us that s. 8, like other Charter rights, must be broadly and liberally construed to effect its purpose. And that purpose, it identified, is to secure the citizen's right to a reasonable expectation of privacy against governmental encroachments. The need for privacy can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion. That physical integrity, including bodily fluids, ranks high among the matters receiving constitutional protection, there is no doubt; see R. v. Pohoretsky, 1987 CanLII 62 (SCC), [1987] 1 S.C.R. 945; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417. Moreover, hospitals have been identified as specific areas of concern in the protection of privacy, given the vulnerability of individuals seeking medical treatment. The requirement for seizing items for the purpose of criminal law enforcement has also been set at a high level; not surprisingly -- it involves the freedom of the individual. Absent exigent circumstances, there is a requirement of prior authorization by a judicial officer as a precondition to a valid seizure for the criminal law purposes; see Hunter, supra. And the minimum requirement for such authorization is that the judicial officer be satisfied that there are reasonable and probable grounds that an offence has been committed and that the search will afford evidence of that offence. This high threshold, together with the general approach set forth in Hunter, at p. 155, that the function of the Charter "is to provide . . . for the unremitting protection of individual rights and liberties" sought to be protected, is the proper perspective from which the situation in the present case must be assessed.

[42] Police Presence in Hospital Emergency Room

With respect to the interaction between hospital staff and police, the Court at paragraph 79, made the following observation:

As an aside, I cannot, however, overstate my concern that such actions may reflect the type of unwelcome complicity between the police and hospital about which I wrote in Dyment, supra. The appellant in this case had already been charged with a criminal offence and, as such, was aware that the results of his treatment might ultimately be used to incriminate him. The presence of the police officer in the emergency room in such circumstances can only serve to undermine the physician-patient relationship, as the accused would likely interpret these facts as a sign that the medical staff was operating in conjunction with the police investigation. Such a scenario could have catastrophic results if an accused resisted essential treatment for fear it might incriminate him in future criminal proceedings. Although I have not categorized the assistance of the police officer at this early stage as a seizure, I would emphasize that such complicity is at best unwise and should be avoided at all times unless the assistance of the police officer is necessary in order to give essential medical treatment because of exigent circumstances. In this situation, the presence of the officer was unwarranted as the hospital staff could have obtained the sample themselves. (Emphasis added)

[43] Violation of Spatial and Informational Privacy

Based on the record I have before me, I conclude there has been a violation of the accused's Charter protected spatial and informational privacy interests. Firstly I am concerned that the officer was so casually allowed entry into the area where the accused was being treated without any apparent regard for his personal privacy concerns. When the officer was given this unrestricted access by hospital personnel the accused had not yet been placed under arrest. According to the investigating officer he was allowed to be in the presence of the accused at all times except for that brief period when he was directed by the treating physician to leave the room. The officer then stood behind a curtain which I assume would provide for nothing more than a modicum of privacy to the accused. Obviously the officer was still in a position where he could likely overhear confidential discussions between patient and doctor. Once the doctor completed his examination the officer once again remained in the presence of the accused.

[44] Absence of Hospital Protocol Evidence

No medical or hospital personnel testified at this proceeding. I have not received any information regarding hospital protocol regarding patient privacy during a police investigation.

[45] Arbitrary Detention and Violation of Privacy

What is clear from the evidence is that upon arrival at the hospital the officer only had a suspicion that a drinking and driving offence had been committed. Hospital personnel brought him to the accused's room and allowed the officer entry into the room where the accused was receiving medical attention. This enabled the officer to pursue his investigation, which ultimately resulted in an unlawful arrest at 6:33 p.m. The invitation into the accused's room followed by the unlawful arrest and subsequent breath demand gave the officer the opportunity to eventually observe the taking of the vials of blood from the accused.

[46] Seizure of Medical Information

This constellation of events in my view constitutes an arbitrary detention and a violation of the accused's s. 9 Charter protected interests. Additionally, the officer's actions enabled him to witness a medical procedure that involved the taking of blood from the accused. As was the case in R. v. Dersch, supra, the accused had a reasonable expectation of privacy in respect of his personal medical information while receiving treatment in the hospital. This was a seizure of highly personal and private medical information regarding the accused. I consider this a serious violation of the accused's s. 8 Charter guarantee to be secure from an unreasonable seizure. The information was obtained without a warrant, rendering the search/seizure by the police prima facie unreasonable, and the Crown has not satisfied the burden of rebutting this presumption of unreasonableness. A common law warrantless search incident to arrest is only lawful and in compliance with s. 8 of the Charter where the predicate arrest is itself lawful: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 13.

[47] Nature of Medical Information Disclosed

There is no doubt that there may be instances where there will be nothing inappropriate as a result of doctors and hospitals releasing neutral medical information, such as the presence of the patient in the hospital. I do not consider the medical information disclosed in this case to be of a neutral quality.

[48] Officer's Presence During Spouse's Visit

Before leaving this topic, I do wish to make an observation regarding the Crown's attempt to validate the officer's continuing presence in the accused's hospital room. The Crown asked the officer why he remained in the room while Mrs. Schneider was present. He replied that it was to maintain continuity of the accused. The Crown then suggested to him that one of the reasons he remained in the room was to ensure that the accused's spouse did not provide alcohol to the accused. The officer agreed with the suggestion.

[49] Credibility Assessment of Officer's Explanation

Given the very leading the nature of the Crown's question on a very important issue, I am inclined to give no weight to this answer. The manner in which this evidence was elicited convinced me that once again, the officer would say whatever he thought the Crown wanted to hear. This portion of the officer's evidence did absolutely nothing to enhance his credibility. I have no doubt that the first time the officer turned his mind to the possibility of Mrs. Schneider providing alcohol to the accused, who was being physically constrained and receiving medical treatment, occurred when the Crown made that suggestion to him in cross-examination. It is noteworthy that the officer chose to remain with the accused after his arrest at 6:33 p.m. and Mrs. Schneider was nowhere to be seen at that point. Clearly, the investigating officer was intent on remaining in the presence of the accused regardless of Mrs. Schneider's presence.

5: DID AFFIXING A CFS SEAL TO THE VIAL CONTAINING THE ACCUSED'S BLOOD CONSTITUTE A SEIZURE

[50] Competing Arguments on Seizure

Counsel for the accused, Mr. Shore has argued that the officer's conduct of affixing a CFS seal to one of the vials of blood amounted to a seizure. Ms. Hepburn on behalf of the Crown submits that based on the Court of Appeal decision in R. v. Gettins, [2003] O.J. No. 4758 (Ont. C.A.) the placing of such a seal does not amount to seizure.

[51] Distinction from Gettins

While I agree with the Court's decision in Gettins, it was significant in Gettins that the vials remained under the control of the hospital in the event that they were needed for medical purposes. In our case, the evidentiary record does not support such a conclusion.

[52] Officer's Testimony vs. ITO Contents

The officer testified that after affixing the CFS seal to a vial of the accused's blood he told the lab technician that, if needed, the blood could be used for medical purposes. I have reason to doubt this evidence. The contents of the ITO belie the evidence he gave at trial.

[53] ITO Paragraph 26

At paragraph 26 of the ITO the officer swore:

That the informant received a red capped blood vial from the medical lab technician that had a label affixed to it. The label indicated the date, May 4, 2012, hospital patient name, Schneider, Larry (DOB: 21 October 1973), and doctor's name, Dr. Hongzinger.

[54] ITO Paragraph 27 - Grounds to Believe

Then at paragraph 27 of the ITO under the heading "Grounds to Believe that the Thing(s) to be Seized is/are at the Place to be Searched" the officer swore:

That the informant affixed a Center of Forensic Science's seal #2NF39886 over the red cap of the vial. The informant then returned the vial back to Kelly King who then placed the vial on the bottom shelf of the walk in fridge of the Core Laboratory for continuity purposes. The Core Laboratory is located in room # 3801 of the West Parry Sound Health Center, 6 Albert St., Parry Sound, Ontario. King then labelled the vial for police use and that it would be kept in the fridge for a length of 30 days. (Emphasis added)

[55] Vial Marked for Police Use

During the voir dire the officer also confirmed that the vial was placed in the fridge on a shelf marked specifically for OPP use. The ITO is glaringly silent regarding the officer advising the lab technician that the blood could be used for medical purposes if necessary.

[56] Absence of Inquiry Regarding Medical Use

The ITO was sworn on May 14, 2012 – ten days after the alleged offence. It is a statutory prerequisite to the issuance of a search warrant that the informant has to satisfy the Justice of the Peace that there are reasonable grounds to believe that the evidence sought is in fact at the location to be searched. Nowhere in the ITO does the officer indicate that he called the hospital to ascertain if the vial of blood was still available or if it had been used for medical purposes. The absence of such an inquiry combined with the omission from the ITO that the lab tech was advised that the blood could be used for medical purposes leads me to reject the officer's viva voce evidence.

[57] Conclusion: Unlawful Seizure

When I consider the entire chronology surrounding the storage of the vial, I find that this case is distinguishable from Gettins, supra. The affixing of the CFS seal to the vial of blood, its subsequent designation "for police use", its placement on a dedicated OPP shelf in the fridge for 30 days and the failure to advise that the blood could be used for medical purposes, effectively resulted in an unlawful seizure by the police officer. This seizure was warrantless and presumptively unlawful. Based on the evidence before me I find that the hospital no longer had control of the vial of blood for medical purposes.

6: VALIDITY OF THE SEARCH WARRANT

[58] Facial and Sub-Facial Challenges

Mr. Shore, on behalf of the accused, challenges the validity of the search warrant on both a facial and sub-facial level. The facial validity is challenged on the basis that the ITO does not provide reasonable grounds to believe that the offence of "over 80 had been committed". In other words, on the face of the affidavit material, the contents of the affidavit do not satisfy the statutory requirements for the issuance of a search warrant. The sub-facial challenge to the affidavit goes behind the form of the affidavit to attack the reliability of its content. The sub-facial challenge is premised on the applicant's assertion that the investigating officer failed to disclose material information to the Justice of the Peace and that misleading information should be excised from the ITO.

[59] Crown's Position on Validity

The Crown on the other hand, submits that any purported element of non-disclosure or misrepresentation was not relevant to the issuance of the search warrant and that the subsequent search and seizure was thereby lawful.

[60] Shift in Investigation Focus

At the risk of being redundant it is noteworthy that prior to the application for a search warrant this investigation was focused on the accused having committed the offence of impaired driving. After all, he had been arrested for impaired driving. With the application for a search warrant the accused became a suspect in an "over 80" offence.

[61] Minimum Requirements for Search Warrant

The minimum requirements for the issuance of a search warrant was discussed by Fish J. in R. v. Morrelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 39:

39 Under the Charter, before a search can be conducted, the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168).

[62] Facial Validity of Warrant

The investigating officer's grounds for believing that an "over 80" offence had been committed are set out in paragraphs 14 to 23 of the ITO. I come to the conclusion that the warrant, as presented to the Justice of the Peace, survives the applicant's challenge to its facial validity. The information disclosed by the investigating officer which supports this conclusion includes:

1. That the accused was involved in an unexplained single motor vehicle accident while operating an ATV.

2. The officer detected an odour of alcohol on the breath of the accused both at the scene and later at the hospital.

3. The officer also noted that the accused's eyes appeared red rimmed and bloodshot.

4. The officer's opinion, based on his experience and training investigating similar type incidents, that the presence on the accused of an odour of alcohol at the hospital was indicative of higher alcohol consumption.

[63] Principles for Sub-Facial Review

In my examination of the sub-facial validity of the warrant, I am guided by the principles set out by the Supreme Court of Canada in R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] S.C.J. No. 117, R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65, and R. v. Grant, 1993 CanLII 68 (SCC), [1993] S.C.J. No. 98.

[64] Reviewing Judge's Role

In Araujo, supra, the Court set out the approach to be taken by a judge when reviewing a judicially authorized warrant. At paragraph 51, the Court stated:

51 The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing of the application for the wiretap. This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 1452:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence 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. [Emphasis added].

[65] Excision of Evidence Obtained Through Charter Violations

In R. v. Grant the Court confirmed that the reviewing judge should excise from an ITO information obtained as a consequence of a Charter violation. At para. 50 the Court stated:

50 In R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] S.C.J. No. 117 the Supreme Court ruled that evidence obtained during a search under warrant had to be excluded under s. 24(2) of the Charter where the warrant was procured through an information which contained facts solely within the knowledge of police as a result of a Charter violation. However, in circumstances such as the case at bar where the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for 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: Garofoli, supra. In this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event. Accordingly, the warrant and search conducted thereunder in the case at bar will be considered constitutionally sound if the warrant would have issued had the observations gleaned through the unconstitutional perimeter searches been excised from the information. It has been admitted that the police had reasonable grounds for the issuance of a warrant before undertaking either of the perimeter searches. This admission on the part of the respondent is eminently proper given the following independent reasonable grounds identified in the information sworn to obtain the warrant.

[66] Excision of References to Blood Vials

In this case I have found that the officer's knowledge regarding the existence of a vial containing the accused's blood and its subsequent storage in the hospital's fridge resulted from violations of the accused's ss. 8 and 9 of the Charter protected interests. Therefore, any references to vials of the accused's blood should be excised from the ITO.

[67] Warrant Would Not Have Been Issued

In the absence of such crucial information the Justice of the Peace would not have had reasonable grounds to believe that evidence of the specified offence would be found at the hospital and the search warrant should not have been issued.

[68] Excision of Officer's Opinion on Odour

The ITO suffers from further deficiencies. Firstly, the officer's opinion regarding the significance of the odour of alcohol detected on the accused at the hospital (para. 23 of the ITO) should be excised from the warrant. For reasons provided earlier in my decision at paragraph 30, his opinion is not legally sound and only served to mislead the Justice of the Peace. I have no reason to find that the officer deliberately misled the Justice of the Peace on this point. Clearly, the officer subjectively believed in the accuracy of his opinion. Unfortunately, the opinion was strongly worded and suggested a substantial nexus between the presence of the odour of alcohol at the hospital and the commission of an "over 80" offence. Such an impression should not have been left with the Justice of the Peace.

[69] Remaining Grounds Insufficient

Even when I consider the record as amplified by the officer during the voir dire, it does not support reasonable grounds to believe that an "over 80" offence had been committed. In his viva voce evidence the officer identified the following factors to substantiate his reasonable grounds:

1. the odour of alcohol emanating from the accused (see also paragraph 5 of ITO);

2. the admission of recent consumption (see also paragraph 5 of ITO);

3. the red rimmed and bloodshot eyes (see also paragraphs 5 and 19 of ITO);

4. the idea that the defendant had alcohol in his body the time of the accident;

5. the operation of a motor vehicle;

6. the details from the witnesses regarding the time of the offence, location of offence and description of operation of vehicle; and

7. the presence of an odour of alcohol on the accused later at the hospital which informed his belief that such an odour suggested higher levels of alcohol consumption (see also paras. 8, 22 and 23 of ITO)

[70] Conclusion on Remaining Grounds

For reasons already provided item 7 is not a legally relevant factor to be considered. The remaining six factors do not add anything to the grounds outlined in the ITO and do not provide reasonable grounds to believe that the accused's blood alcohol concentration exceeded the legal limit. At best the officer had a suspicion that an offence had been committed contrary section 253(b) of the Code.

[71] Omission of Officer's Opinion on Cause of Accident

A further problem with the ITO is that the officer did not include his initial opinion that the accident was caused by the accused operating his ATV at an excessive speed on an oil-covered gravel roadway. In the absence of this opinion, the Justice of the Peace was in effect presented with:

1. An unexplained, single motor vehicle collision;

2. An odour of alcohol on the accused;

3. An accused with red rimmed and bloodshot eyes;

4. An admission by the accused that he last consumed an alcoholic beverage two hours before the accident. This information was referred to in paragraph 5 of the ITO under the section, "Background to Investigation", rather than the section entitled "Grounds to Believe Offence Has Been/Is Being Committed".

[72] Significance of Omission

Courts have held that in some circumstances consumption plus an unexplained accident may generate reasonable and probable grounds to believe that the offence of impaired driving has been committed although that may not always be the case: R. v. Rhyason, 2007 SCC 39, [2007] S.C.J. No. 39 at para. 19. The absence of the officer's opinion left the Justice of the Peace with a less than complete picture. The officer's opinion should have been placed before the Justice of the Peace for her consideration. Having said that, one cannot lose sight of the fact that we are dealing with an ITO in the context of an "over 80 offence"… not impaired driving. If anything, this oversight speaks to carelessness in drafting of the information.

[73] Misstatement in Paragraph 6 of ITO

The effect of this omission was likely compounded by the officer's misstatement in paragraph 6 of the ITO wherein he stated, "at 6:02 p.m. the informant followed the ambulance to West Parry Sound Health Centre because the informant believed a drinking and driving offence may have been committed." (Emphasis added). The evidence disclosed that the officer did not have this belief. He only had a suspicion that a drinking and driving offense had been committed. Therefore, paragraph 6 should be excised as it is misleading.

[74] Misleading Impression Left with Justice of the Peace

These misstatements left the authorizing judicial officer with the impression that the only explanation for the cause of the accident was the consumption of alcohol in excess of the legal limit and that the officer believed that to be the case. Such an impression was misleading.

[75] Warrant Set Aside

Once the foregoing information is excised from the ITO, the authorizing Justice of the Peace, her Worship P. Tennant, would not have had available to her the requisite reasonable grounds to justify the issuance of the warrant. The warrant issued on May 14, 2012 is set aside. Therefore, the seizure of the accused's blood was warrantless and presumptively unreasonable and a violation of his section 8 Charter protected rights. The Crown has not rebutted the presumption of unreasonableness.

7: EFFECT OF THE UNLAWFUL ARREST AND ARBITRARY DETENTION

[76] Section 24(2) Framework

After R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the assessment under s. 24(2) requires a consideration of the seriousness of the police conduct, the impact of the breach on the Charter protected interests of the accused, and society's interest in an adjudication on the merits of the case.

8: SERIOUSNESS OF THE CHARTER INFRINGING STATE CONDUCT

[77] Multiple Breaches

In assessing the seriousness of the Charter infringing state conduct, it is helpful to identify the multiple breaches:

1. The accused was unlawfully arrested and detained in the hospital while receiving medical treatment;

2. The officer's presence in the hospital room reflects a total disregard of the accused's spatial, informational and privacy interests while he was being treated;

3. The accused was subjected to an unlawful breath demand;

4. The accused was subjected to an unlawful blood demand;

5. There was a warrantless seizure of the accused's blood on May 4, 2012;

6. There was a subsequent seizure of the accused's blood on May 12, 2012 pursuant to a search warrant which I have found to be invalid.

[78] Cumulative Effect of Breaches

I find that the cumulative effect of the Charter infringing police conduct was very serious. The original unlawful arrest, that set the stage for the subsequent multiple breaches, did not even come close to meeting the reasonable grounds threshold. This was a case where the officer had suspicion and nothing more. It is troubling that notwithstanding an arrest for impaired driving the accused was never charged that offence. Instead, the grounds that once informed an arrest for impaired driving were subsequently relied upon to support a belief that the offence of "over 80" had been committed.

[79] Significance of Bodily Substance Seizures

It cannot be forgotten that breath and blood demands allow for statutorily authorized warrantless seizures of bodily substances. Obviously, a blood demand is more intrusive. These demands allow for significant intrusion into one's personal privacy. Like search warrants, these statutorily authorized demands require reasonable grounds to believe that a criminal offence has occurred. In this case those grounds were not close to being met.

[80] Breach of Privacy in Hospital Setting

The breach of the accused's privacy interests at the hospital while receiving medical treatment was significant. When the officer was directed to the accused's room and allowed entry it appears little consideration was given to whether he should even be there in the first place. The accused was receiving emergency medical attention. When the officer attended with the accused he had nothing more than suspicion regarding the accused being involved in a possible drinking and driving offence. This case raises concerns regarding the free flow of information between police and hospital staff. I have not heard any evidence to suggest that the investigating officer or the hospital staff took any steps to safeguard the accused's privacy while he was being treated in the hospital. Obviously, the treating physician recognized the privacy concerns and directed that the officer leave the room. Based on the officer's evidence he did not leave the room but simply stood behind the curtain of the hospital bed. If anything, hospital staff assisted the officer by bringing him to the room where the accused was being treated and then granted him unfettered access to the accused and ultimately the vial of the accused's blood.

[81] Seriousness of Search and Seizure Under Warrant

The search and seizure conducted in accordance with the search warrant that I have found to be unlawful was also a serious breach. While I do not suggest that the officer deliberately attempted to mislead the authorizing justice, his inaccurate wording and the omission of important information in what was a relatively simple investigation amounts to unacceptable and careless draftsmanship.

[82] Assessment of Seriousness

I would assess the Charter infringing state conduct as serious for s. 24(2) purposes. This line of inquiry points towards exclusion of the evidence seized.

9: IMPACT ON CHARTER PROTECTED INTERESTS

[83] Seriousness of Arrest

There can be no doubt that an arrest is a serious intrusion on the personal autonomy of the individual arrested: R. v. Brown, 2012 ONCA 225, [2012] O.J. No. 1569 para. 25.

[84] Violation of Bodily Integrity and Privacy

The breaches involved a violation of personal privacy interests and the eventual seizure of bodily fluids, matters which attract significant Charter protection. As observed in Dyment, supra, at paragraph 38:

38 The Charter breach, in my view, was a very serious one. In Pohoretsky, supra, at p. 949, Lamer J. observed that "a violation of the sanctity of a person's body is much more serious than that of his office or even of his home". It is true that the police in that case were directly implicated in the invasion of the appellant's body. However, as I earlier indicated, the sense of privacy transcends the physical. The dignity of the human being is equally seriously violated when use is made of bodily substances taken by others for medical purposes in a manner that does not respect that limitation. In my view, the trust and confidence of the public in the administration of medical facilities would be seriously taxed if an easy and informal flow of information, and particularly of bodily substances from hospitals to the police, were allowed. In R. v. DeCoste (1983), 1983 CanLII 5261 (NS SC), 60 N.S.R. (2d) 170 (S.C.T.D.), at p. 174, Grant J. stated his belief that "members of the public consider a hospital as a place where the sick and injured are treated and not a place where a doctor would take blood from an unconscious or semi-conscious person for the sole purpose of satisfying the unlawful demand or request of a police officer". I agree, and I do not think they would feel differently about doctors and medical personnel freely handing over blood taken for medical purposes to a police officer or the police officer accepting it when there are well-known and recognized procedures for obtaining such evidence when the police have reasonable and probable grounds for believing a crime has been committed. In such a case, all are implicated in a flagrant breach of personal privacy. Though he spoke in terms of the pre-Charter "community shock" test, Mitchell J. in this case was substantially right when he stated at p. 355:

If the court received evidence obtained by taking a blood sample without consent, medical necessity or lawful authority, and without the police having any probable cause, it would bring the administration of justice into disrepute.... What happened here constitutes such a gross violation to the sanctity, integrity and privacy of the appellant's bodily substances and medical records that the community would be shocked and appalled if the court allowed the admission of this evidence in the face of the Charter.

Such a practice would bring both the administration of health services and the administration of justice into disrepute.

[85] Conclusion on Impact

This line of inquiry favours exclusion of the evidence.

10: SOCIETY'S INTEREST IN AN ADJUDICATION ON THE MERITS

[86] Reliability and Centrality of Evidence

All of the evidence seized, both with and without warrant, is reliable. The blood and the results of its analysis are central to the Crown's case. The societal interest in the adjudication of this driving offence on its merits would be seriously undercut by excluding reliable and essential evidence. This line of inquiry favours admission of the evidence.

11: BALANCING

[87] Appropriate Remedy Under Charter

In determining what remedy is appropriate under the Charter a Court should not strive to punish police for their conduct or misconduct. At the same time a court should not be seen as condoning police conduct which falls significantly short of respecting Charter protected interests. This concern is heightened when the breaches occur in a hospital setting and involves a seizure of a bodily substance.

[88] Final Determination: Evidence Excluded

I appreciate that the evidence seized pursuant to the warrant was reliable and necessary for the effective prosecution of this matter. However, when I balance the relevant factors as set out in Grant, supra, I come to the conclusion that a reasonable person, informed of the relevant circumstances and familiar with Charter values, would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute. The police conduct was serious and there was a significant impact on the accused's privacy interests. Accordingly, the accused's application for exclusion of the evidence will be granted. The Crown will be prohibited from relying upon the blood that was seized and the results of its analysis.

Released: June 26, 2013

Signed: "Justice Andrew L. Buttazzoni"