Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
James Patterson
Before: Justice Scott Latimer
Heard on: March 10, 11, October 20, 2020
Reasons for Decision released on: November 20, 2020
Counsel
Harutyun Apel — counsel for the Crown
Daniel Brown — counsel for Mr. Patterson
Lindsay Board — counsel for Mr. Patterson
LATIMER J.:
[1] Introduction
James Patterson is charged with very serious offences: impaired driving and dangerous driving causing death. This pre-trial motion concerns the admissibility of various pieces of evidence obtained by the police during their investigation. Mr. Patterson submits that the police violated his Charter rights in a variety of different ways; the Crown, for their part, concedes some violations but not others.
[2] Scope of Motion
I have heard submissions regarding alleged violations of Mr. Patterson's section 7, 8, 9 and 10(a)-(b) rights. On agreement, the parties will return to make further submissions regarding exclusion of evidence following the release of this ruling, armed with a fuller understanding of the extent to which the police violated Mr. Patterson's Charter rights.
I. SUMMARY OF MY FINDINGS
[3] Overview of Issues
The issues in this matter can be divided into two broad categories: (1) what happened at the hospital, and (2) what happened at the roadside. For the reasons that will follow, I find the following Charter violations to have taken place:
At the Hospital
(a) The applicant's section 10 rights were violated when he was detained at the hospital, under investigation for a criminal offence, without being informed of the nature of the investigation or given his rights to counsel.
(b) His s. 7 rights were violated when he was statutorily compelled to provide a statement to the police, and that statement was sought to be used against him in a criminal proceeding.
(c) His ss. 8 and 9 rights were violated when he was arrested without grounds for impaired driving causing death.
(d) His s. 8 rights were further violated when he was compelled to provide a breath sample; in the absence of reasonable grounds, the demand was unlawful.
(e) Mr. Patterson had blood drawn for medical purposes while he was treated at the hospital. This blood was later seized by the police pursuant to warrant. However, when the unconstitutionally obtained evidence is excised from consideration, reasonable grounds no longer exist for the warrant's issuance. As a result, the seizure of Mr. Patterson's blood further violated his section 8 rights.
(f) I do not accept that, upon arrest, Mr. Patterson's rights to counsel were violated. P.C. Hughes, while deficient elsewhere, complied with his informational obligations in the circumstances. Nothing Mr. Patterson said or did warranted additional steps to be taken. I further do not accept that his privacy rights were violated during his consultation with duty counsel, nor do I accept that he expressed any dissatisfaction with the private nature of his consultation or the quality of legal advice received.
At the Roadside
(g) The police lacked reasonable grounds to believe Mr. Patterson's vehicle had been involved in a criminal offence. As a result, Constable Vu could not rely on the s.489(2) Criminal Code authority to seize the vehicle. No other lawful authority was submitted to be applicable. In the circumstances, the vehicle seizure was unreasonable, as was the subsequent mechanical inspection.
To be clear, however, I am not satisfied that the "mechanical fitness inspection" amounted to an additional s.8 violation, separate and apart from the vehicle seizure. Whatever privacy rights Mr. Patterson possessed regarding his vehicle and its components, those rights would have been extinguished following a lawful seizure. Put another way, when the police lawfully seize a vehicle involved in a motor vehicle collision, I do not believe that a mechanical inspection, of the manner described in this case, amounts to a "search" for Charter purposes. The vehicle owner would not continue to possess a reasonable expectation of privacy in such circumstances.
(h) The Crown concedes that the report to justice was not filed "as soon as practicable" in relation to the vehicle and, as a result, was not compliant with s. 489.1 of the Code. This amounts to a further s. 8 violation. No report was ever filed in relation to Mr. Patterson's phone, which was inside his vehicle at the time of seizure.
(i) In the absence of a lawful reason to be in possession of the vehicle, the subsequent warranted seizure of the air bag data information is unlawful. Once the information related to the unconstitutional seizure is excised from the information to obtain, the warrant cannot stand. The seizure of the airbag data in these circumstances amounts to a further s. 8 violation.
[4] Evidence Obtained in a Manner
As a result of these findings, the following evidence is "obtained in a manner" for the purposes of s. 24(2) of the Charter:
(a) The breath readings
(b) All statements made by Mr. Patterson
(c) The blood samples
(d) All observations made at the hospital after 6:35 p.m.
(e) All observations made of the vehicle during the mechanical inspection
(f) The airbag data
[5] Significance of Violations
To state the obvious, this is a long list of constitutional violations. It is regrettable that these violations occurred in such a serious matter, both for Mr. Patterson and for the public. The unfortunate reality, however, is that this investigation was flawed from the outset. Constables Hughes and Vu both took investigative shortcuts that resulted in evidence being unlawfully obtained, such as the applicant's truck and the statements, breath samples and observations that were gained at the hospital. This unlawfully-obtained body of evidence was then relied upon in later judicial authorizations to obtain private medical information and internal data from the vehicle, related to speed and braking at the point of collision. Had the law been followed during the initial steps of this investigation, these potentially valuable pieces of evidence could likely have been lawfully obtained. In the circumstances, however, to borrow an American expression, the blood samples and airbag data are fruit of the poisoned tree. Evidence obtained in violation of the Charter cannot be relied upon to lawfully seize other evidence. As a result, the warranted seizures in this case are additionally rendered unlawful.
II. FACTS & ANALYSIS
[6] Credibility and Evidence
I have heard the evidence of three witnesses during this application: Mr. Patterson, Constable Hughes (the officer who went with Mr. Patterson to the hospital), and Constable Vu (the accident reconstructionist who investigated the crash site and made the decision to seize Mr. Patterson's truck). I have considered the credibility and reliability of each of their evidence, both internally as well as in the context of the entire evidentiary record. In preparing these reasons, I have the benefit of my notes as well as court transcripts. What follows are my factual findings and the related legal analysis, issue by issue.
(1) The Hospital-Related Issues
(a) The Collision
[7] The Incident
On February 7, 2018, Mr. Patterson was driving his truck north on Guelph Line, near Campbellville. It was the afternoon and he had just completed a business meeting at a restaurant, where he had consumed two beers. He described the weather as snowy. His recollection of his drive ends at Guelph Line's intersection with Limestone Road, as the next thing he recalls is the airbags having deployed and being in a great deal of pain.
[8] Immediate Aftermath
Mr. Patterson exited his truck and noticed another vehicle off the road and in the ditch. He started down the decline to try and help, but was stopped by a third party, who told him he was in bad shape. Mr. Patterson realized he was bleeding and began to appreciate the severity of the situation. He returned to his truck with thoughts of calling his wife. At the truck another person approached, advising that they were an off-duty police officer and that 911 had been called and EMS was on the way.
(b) A Detention Begins for Charter Purposes
[9] Hospital Arrival and Police Presence
When the medical personnel arrived, they treated Mr. Patterson and took him to the hospital. He recalls being in a treatment room with doctors, nurses, and a uniformed Halton police officer. This was Constable Hughes, who had been instructed by a senior officer to travel with Mr. Patterson to the hospital for two reasons: first, to obtain a statement pursuant to the Highway Traffic Act and, second, to investigate suspected impaired driving. In particular, the off-duty officer advised the investigators that he thought he could smell marijuana on Mr. Patterson.
[10] Officer's Conduct
Mr. Patterson recalled Constable Hughes standing approximately six feet away from him, remaining quiet while the nurses were providing care. He did not introduce himself to anyone, and Mr. Patterson did not think he could tell the officer to leave.
[11] Initial Questioning
After about twenty minutes, the officer initiated a conversation with Mr. Patterson, telling him he was there to investigate the accident that had just occurred. He did not tell Mr. Patterson anything about an ongoing impaired driving investigation, nor did he provide any sort of caution or warning about Mr. Patterson's legal rights. The officer essentially just asked"what happened?" Mr. Patterson responded by describing leaving the restaurant and driving north, until his memory failed him, proximate to the site of the collision. He did not tell the officer that he had consumed two beers while at the restaurant.
[12] Officer's Testimony on Investigative Focus
Constable Hughes testified that, while waiting for the nurses and doctor to finish with Mr. Patterson, he determined in his own mind that the off-duty officer had been mistaken about the smell of marijuana; it was simply that of a skunk, which Hughes had smelled earlier near the collision scene. He testified that this focused his professional interest in Mr. Patterson exclusively on obtaining a statement from someone who had been in a motor vehicle collision, for HTA purposes:
Hughes: …at this point I am trying to get his side of the collision that took place.
Crown: And you caution him at this point?
Hughes: No, because at this point I was investigating a collision, because I had already been satisfied that the initial complaint was a skunk. So at this point I was treating it like any other motor vehicle collision where I just speak to the drivers and at this point I don't know who is at fault, I just know that there was a collision, an individual has died from it, and the other driver was right in front of me.
[13] Court's Finding on Detention
I have trouble accepting this answer – and do not accept it – because of everything else that was going on at the time. This was a serious collision. Someone had died. Other police officers were still investigating at the roadside. An off-duty officer thought the applicant smelled like marijuana, and Constable Hughes had been tasked by a senior officer to travel to the hospital and obtain evidence. I do not accept Hughes' claim that he immediately rejected any possibility of impairment when he remembered the skunk smell near the roadway, nor do I accept his testimony that there was no criminal aspect to his investigation when he stood in the hospital treatment room and asked Mr. Patterson potentially incriminating questions. The sheer fact that he was interjecting himself into ongoing medical treatment demonstrates that this was not just "any other motor vehicle collision". I find as a fact that, in Hughes' mind, this remained a criminal investigation throughout and, when he began asking questions at approximately 6:35 p.m., Mr. Patterson was detained: see R. v. Grant, 2009 SCC 32, at paras. 30, 44. Mr. Patterson was singled out for a focused criminal investigation by an officer who had created a circumstance where his suspect would have felt obligated to answer his inquiries. The absence of legal rights during this detention denied Mr. Patterson the knowledge of what he was being investigated for (a s.10(a) violation), and his rights to counsel under s.10(b).
(c) A Compelled Statement
[14] The White/Soules Issue
A common legal issue in criminal investigations arising out of a motor vehicle collision is what is often termed the "White/Soules issue". Driving in Ontario is a licensed activity and a privilege. As such, drivers have certain obligations, under both the common law and provincial legislation. One of those obligations is, upon being a driver involved in an accident, to report forthwith to the police the fact of the accident and the relevant circumstances: see Highway Traffic Act (Ontario), s. 199(1).
[15] Statutory Obligation
In this way, the Highway Traffic Act places a statutory obligation on drivers to report details of collisions that they were involved in. Police officers, consistent with their general duty to enforce the law, are obligated to investigate such matters. The s. 199(1) requirement to provide potentially incriminating information to law enforcement is an aspect of the HTA regulatory scheme that is meant to enhance road safety. Mr. Patterson, like all motorists, had a potential obligation to tell the police details about the collision. I accept that he was aware of that obligation when he spoke to Constable Hughes in the hospital room, and that this awareness informed his decision to speak.
[16] Applicant's Prior Experience
Mr. Patterson has extensive prior experience with the obligations of a driver on Ontario's roads, given his prior work experience in commercial trucking. He had driven a truck, as well as owning others. In this capacity, he had attended safety seminars that explained a driver's reporting obligations following a collision.
[17] Volunteer Firefighter Experience
Additionally, Mr. Patterson is also a volunteer firefighter. He testified that, in this role, he would find himself at accident scenes, sometimes before the police would arrive. He has in the past had to advise other drivers that they cannot leave the scene of the accident until they have been released by the police.
[18] Compelled Nature of Statement
This knowledge informed Mr. Patterson's understanding of his interaction with Constable Hughes. Patterson testified that he felt he "had no choice [but] to speak". I accept his evidence on this point. I note that Hughes testified that his intention in asking "what happened" was to compel a statement pursuant to HTA authority, although he did not expressly tell Mr. Patterson this. At the close of the evidence, the Crown advised that they accepted Mr. Patterson's position on this point and were conceding a section 7 Charter violation.
[19] Legal Test and Admissibility
What happened in this case violated the Charter because the Crown and the police were seeking to use statutorily compelled statements to further a criminal proceeding. The Supreme Court of Canada in R. v. White, para. 74, set out the test for judges to apply to this issue. All parties agree in this case that the test is met. Mr. Patterson's statements to Constable Hughes are not admissible in this trial for any purpose: see R. v. Soules, 2011 ONCA 429.
[20] Police Misuse of State Power
As stated above, I do not accept Constable Hughes' testimony that, at the time of questioning, the object of his inquiry was exclusively regulatory. I believe his purpose in attending at the hospital and asking Patterson questions – questions they both knew Patterson was legally obligated to answer – was to further his criminal investigation. The potential of such misuse of state power was foreseen by the majority opinion in White:
In the present case, again, the possibility is real and serious that permitting the use of compelled accident reports within criminal proceedings might increase the likelihood of abusive conduct by the state. In taking accident reports from drivers, police would have a strong incentive or perhaps an unconscious inclination to overemphasize the extent of the statutory duty to report an accident under the Act, in order to obtain relevant information. The effect of such an overemphasis might be to circumvent or defeat a driver's s. 7 right to remain silent when under investigation for a criminal offence. (para. 64)
[21] Police Obligations
Drivers in Ontario have obligations under the Highway Traffic Act, but they also have rights under the Charter. These rights and obligations repeatedly clash in the criminal investigative context when a motor vehicle collision has occurred. For that reason, police officers need to clearly delineate – to citizens but also for reviewing courts – when their focus is regulatory, and when it is criminal. Such judicial statements are not novel – appellate courts in Canada have been making them for years: see White, at para. 80; Soules, paras. 51-54. The police ignore these statements at their peril. In this case, given the ongoing criminal investigation, Mr. Patterson was entitled to know why he was being questioned by the police. He had the right to choose for himself whether to remain silent, or whether he was obligated by statute to answer the question posed.
(d) An Unlawful Arrest and Breath Demand
[22] Arrest and Breath Odour
Mr. Patterson, however, was never cautioned about any legal rights until after he had answered Hughes' question and, in so doing, revealed the smell of alcohol on his breath. At this point he was arrested and, for the first time, cautioned about his right to silence. His arrest occurred at 6:39 p.m. Mr. Patterson testified that, had he known the extent of his jeopardy sooner, he would have wanted to speak to a lawyer. When he heard the charge read to him, he testified that he felt "devastated, and sick to his stomach". Until that point, he did not appreciate how serious his situation was. I accept his evidence on this point.
[23] Unlawful Arrest
As I have already touched upon, the Charter does not permit unlawfully obtained evidence to be relied upon for subsequent investigative purposes: see R. v. Grant. In this case, the statement to Constable Hughes, and the concurrent odour of alcohol on Mr. Patterson's breath, were unlawfully obtained two different ways: first, he was detained but not provided with his s. 10(a) and (b) rights; and second, the utterances were statutorily compelled in violation of s. 7 of the Charter. As the Crown properly concedes, the arrest was unlawful because, without this improperly obtained evidence, there was no basis for it in the first place.
[24] Officer's Testimony on ASD
During cross-examination in this area, a remarkable answer emerged that needs to be addressed in this ruling. Constable Hughes was being asked questions about his thought process leading up to the impaired driving arrest. Mr. Brown asked him to explain what his reasonable grounds were for the arrest. Hughes responded:
So, it's just the totality of the circumstances, right. In regard to accidents, for example, right, like I would never ASD an individual. We just don't, we can't…
[25] Officer's Explanation
Constable Hughes' answer began to wander into a hypothetical tangent I had difficulty following, but Mr. Brown stayed focused on the ASD comment, until finally Hughes began to explain his thought process:
Hughes: … I'm saying I also was under the impression that if I ASD'd him, I would lose the impaired driving.
Brown: Help me understand that. Why would you lose the impaired driving if you provided an ASD?
Hughes: I don't know. That's why I was under the impression I don't think that's the way now, but I've been off the road for two years, so I think at the time, my understanding was if there was no driving evidence or anything like that, if you ASD'd somebody, you'd lose that, but I might be mistaken and just be confusing everything at this point…
[26] Court's Assessment of Officer's Credibility
While Hughes took pains to stress that he did not mean to say that he engaged in this specific approach in this case, in my view these answers are revealing. In a given case, Constable Hughes is prepared to misstate his investigative state of mind in order to achieve a particular outcome; i.e. to not foreclose the possibility of a later impaired driving charge. Leaving aside that this answer is legally wrong, its motivation is troubling, and a further reason why I reject his earlier evidence that his investigative focus was limited to obtaining a statement for HTA purposes. Constable Hughes' answer about why he would elevate a suspicion to grounds – in order to bypass the ASD procedure in a case involving an accident – demonstrates a casual approach to legal rights and an 'ends justifies the means' approach to policing.
[27] Breath Demand Unlawful
In conclusion on this point, Section 254(3) of the Code – in force at the time of this investigation – permitted the police, upon obtaining reasonable grounds, to compel a motorist to take a breath test. Mr. Patterson was so compelled following his arrest. However, that legal authority only operates when the police have reasonable grounds untainted by unconstitutionally obtained evidence. Therefore, just like the arrest, the breath samples were unlawfully obtained because Constable Hughes did not have suitable legal authority to make the demand in the first place. The Crown properly concedes a Charter violation regarding the breath samples, which registered readings of 16 and 9 milligrams of alcohol in one hundred millilitres of blood, respectively.
(e) The Later Search Warrant for Blood Samples
[28] Blood Drawn for Medical Purposes
At 6:43 p.m., a nurse drew blood from Mr. Patterson for medical purposes. This was just after Mr. Patterson had been unlawfully arrested by Constable Hughes. Blood samples often provide reliable information regarding a driver's blood alcohol concentration at the time of driving. Such samples are commonly sought by police officers during impaired driving investigations, particularly those that involve serious injury or death. However, because of the obvious privacy issues, a search warrant is required before the police can seize blood samples taken by hospital personnel.
[29] Warrant Application and Excision Analysis
In this case, five days later, on February 12, a police officer applied to a Justice of the Peace for a search warrant to seize the applicant's blood, and one was granted. The difficulty for the Crown, however, is that the information relied upon by the officer was the earlier improperly-obtained information. While the Justice of the Peace was right to issue the warrant, my role is different. On this review, I am obligated to remove from consideration everything in the information to obtain that was unconstitutionally obtained (so, in this case, basically everything that occurred at the hospital after 6:35 p.m.) and determine, based on what remains, if the warrant could still have been issued: see R. v. Mahmood, 2011 ONCA 693, at para.99.
[30] Warrant Cannot Stand
In the present case, very little relevant information remains, and I conclude that the warrant for the blood samples could not have issued on such limited information. Even knowledge of the blood in the first place, as being present and available at the hospital for seizure, only existed because Constable Hughes was present with Mr. Patterson at the time, conducting an unlawful arrest and detention.
(f) The Section 10(b) Issues Related to Accessing Counsel
[31] Right to Counsel Information
Mr. Patterson testified that, upon his arrest, the officer read him his legal rights off a card and asked him if he wanted to speak to a lawyer. Patterson wanted to speak to a lawyer but did not know a specific one to call. Constable Hughes responded that he would obtain duty counsel for him. Mr. Patterson testified that he did not recall being told that he could contact any lawyer he wished, though he acknowledged in cross-examination that it is possible he was told this and it just didn't register. I accept that this is what happened: Hughes read the standard rights to counsel off his pre-printed card, which includes the fact that Patterson could call any lawyer he wished. While Mr. Patterson may not have appreciated the full extent of his section 10(b) right, he did not say or do anything that would have caused Hughes to realize that he was, to a degree, misinformed.
[32] Access to Duty Counsel
After receiving a request for duty counsel, Constable Hughes went off to implement access. He returned with a telephone and handed it to Mr. Patterson before leaving the room. Hughes stood outside the door, looking in the window. Patterson could hear sounds through the door and was concerned about how much the officer could overhear. In the circumstances, he felt he could not go into details about his situation. He nevertheless spoke to the lawyer for a few minutes before the officer interrupted, advising that the medical staff wished him to go to the imaging area for testing. When he returned, he was given further access to duty counsel – this time a different lawyer – and spoke to this person for approximately five to ten minutes. When the call ended, Mr. Patterson called out that he was "done", and the officer heard him through the door and entered the room to take the phone.
[33] Steering to Duty Counsel
Two related Charter issues are pressed by the applicant regarding this time period. First, it is submitted that Constable Hughes' conduct effectively "steered" Mr. Patterson to duty counsel, thereby denying him of access to a lawyer of his own choosing. Mr. Brown submits the information provided about access to a lawyer was deficient, in part because, when Patterson said he didn't have the name of a lawyer, Hughes' response regarding duty counsel was framed as a direction and not a question: 'you will speak to duty counsel', instead of, 'would you like to speak to duty counsel'?
[34] Informational Component of Section 10(b)
In my view, considering the totality of the information provided, the applicant was properly informed about his right to contact any lawyer of his choosing. The officer's later response to Mr. Patterson's lack of knowledge of a specific lawyer did not deprive Patterson of the right to contact a lawyer of his choosing, or misinform him about the extent of his s. 10(b) rights. In R. v. Devries, 2009 ONCA 477, Justice Doherty, writing for the Court, summarized the scope and nature of the section 10(b) right at paragraphs 21 to 23 of the decision:
Section 10(b) contains two distinct rights. First, it obligates the police to inform a detainee of his or her right to speak with a lawyer without delay. Second, it guarantees the right of a detainee to retain and instruct counsel. If a detainee chooses to exercise that right, the police must provide the detainee with a reasonable opportunity to do so and must refrain from questioning the detainee or otherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to counsel with counsel…
The informational component of s. 10(b) has two parts. The first is apparent in the language of the section, while the second is a product of the jurisprudence. Section 10(b) expressly requires that the detainee be told of his or her right to retain and instruct counsel without delay. In R. v. Brydges, the Supreme Court of Canada extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel and Legal Aid.
[35] No Section 10(b) Violation
In R. v. Willier, 2010 SCC 37, Chief Justice McLachlin and Justice Charron, writing for a majority of the Court, stated at paragraph 31 that the informational component "is relatively straightforward. However, should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding" [emphasis added]. In the present case, the information provided was appropriate, and Mr. Patterson gave no positive indication that he did not understand it. Therefore, no s. 10(b) violation occurred in the circumstances.
[36] Privacy During Consultation
The applicant's next argument is that he was denied adequate privacy during his phone consultation with duty counsel. It is the applicant's burden, on a balance of probabilities, to satisfy me on this issue. The focus of his argument is that, while there may not have been an actual invasion of privacy, in the circumstances his rights were breached because he did not reasonably believe his phone consultation with duty counsel was private.
[37] Privacy Concerns Unreasonable
Having reflected on this issue, I am not satisfied that the applicant has met his burden. He was permitted to speak to counsel in an empty room with the door shut. The reality is that he was in a busy hospital at the time; noise from the hallway is not unusual. I am also conscious of the fact that Constable Hughes was obligated to provide access to counsel without delay. In the circumstances, I am satisfied that was accomplished. Mr. Patterson's concerns to the contrary, in the context of this specific branch of his application, were unreasonable. I note that at no time did he raise the issue, either with the lawyer he was speaking to or Constable Hughes himself: see R. v. Burley, at paras. 25-26.
(2) The Roadside-Related Issues
(g) The Vehicle Seizure
[38] Vehicle Seized
After Mr. Patterson's breath tests returned such low readings, the police advised him that he was being released unconditionally and was no longer being detained for investigative purposes. He remained at the hospital for medical treatment but, the next day, his wife went to the police station to obtain his truck and its contents. She was told that the vehicle had been seized by investigators and was not being returned at this time.
[39] Constable Vu's Role
The truck was seized the night before by police officers who remained at the crash site. Constable Vu, a collision investigator with Halton Police, was tasked by the officer-in-charge of the case to fulfill the role of accident reconstructionist. Vu described this role as "document[ing] conditions of vehicles and road conditions". He arrived on scene at 7:30 p.m. and remained for approximately four hours, taking notations and observing information he thought relevant to his investigation of how the collision had occurred. For example, he noted gouge marks on the southbound side of the road that, in his opinion, related to the crash.
[40] Decision to Seize Vehicles
At approximately 11:30 p.m., he made the decision to seize both the applicant's truck and the deceased's sport utility vehicle. He testified that he chose to do so because he was investigating dangerous driving and wanted both vehicles to be inspected by a mechanic for "road worthiness". In particular, he wished access to the ACM, the airbag control module. This module records, among other things, vehicle speed and braking in the five seconds prior to air bag deployment.
[41] Vehicles Towed and Report Filed
Both vehicles were towed to a compound in Milton where the airbag data was extracted pursuant to warrant. Constable Vu analyzed the data and subsequently completed a report to justice regarding the seized vehicle. His report was dated February 14, 2018, one week after the seizure. It specified the two vehicles, but was silent on the applicant's phone, which was inside his truck at the time of seizure.
[42] Section 489(2) Authority
Constable Vu testified that he seized the vehicles without warrant, pursuant to the authority found in s. 489(2)(c) of the Code. The salient portions of that section read:
Every peace officer … in the execution of [his] duties may, without a warrant, seize any thing that the officer believes on reasonable grounds
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
[43] Limits of Section 489(2)
This provision, on its face, could permit a peace officer to seize a vehicle as evidence, so long as the officer has reasonable grounds to believe the vehicle will afford evidence in respect of an offence, in this case dangerous driving. The provision does not permit a search in aid of something to seize: for example, Constable Vu could not have gone into the applicant's garage to search for the truck, and then seize it. Justice Borins, writing for Court of Appeal in R. v. L.F., 166 CCC (3d) 97, explains the limits of this provision at paragraph 27 of the judgment:
Nevertheless, in my opinion it is clear that because neither subsection (1), nor subsection (2), authorizes a warrantless search, the power of seizure which they authorize necessarily is confined to what police officers locate in the execution of a valid search warrant under subsection (1) or where an officer is lawfully present in a place under subsection (2). Therefore, read as a whole, s. 489 authorizes police officers to lawfully seize items which they locate in the circumstances provided for in subsections (1) and (2).
[44] Lawful Police Conduct
Lawful police conduct, independent of the authority that resides in s. 489(2)(c), must exist at the time the officer makes the decision to conduct a seizure. In the present case, Constable Vu was engaged in a criminal investigation when he made the decision to seize. The vehicles that had been involved in the collision were easily identifiable, and in plain view near the roadway. No additional searching was required to identify them. All that was required was for Vu to have "reasonable grounds" to believe that they would afford evidence of dangerous driving.
[45] Meaning of "Reasonable Grounds"
The parties in this case disagree on what "reasonable grounds" means in the s. 489(2) Code context. The applicant submits it means exactly what it says – reasonable and probable grounds. The respondent disagrees, suggesting that a lesser suspicion-based standard should be applied, picking up upon the use of the word "possible" in a decision from a colleague of mine: R. v. Attard, 2020 ONCJ 108, at para. 72.
[46] Reasonable Grounds Standard
This issue can be easily resolved. "Reasonable grounds" in the Criminal Code is synonymous with "reasonable and probable grounds", or a "credibly based probability": Baron v. Canada, at para. 43; see also R. v. Jones, 2011 ONCA 632, at para. 73. This is generally the minimum standard, consistent with the Charter, for authorizing a search or seizure in Canada: Hunter v. Southam, at para. 168.
[47] Constable Vu's Evidence
What this means is, for Constable Vu's seizure of the applicant's truck to be lawful, he must have had a credibly based probability that the truck would afford evidence of dangerous driving. His evidence, however, is decidedly uneven on this point. In cross-examination he agreed that, at the time of seizure, he wasn't "there yet", meaning he was not at a point where he would arrest for dangerous driving. Later, however, he testified that he "wouldn't say that there weren't grounds". However, critically, in his supplemental occurrence report, as well as on the report to a justice he would file one week later, he indicated he was investigating a "possible offence" of dangerous driving.
[48] Court's Assessment of Officer's Credibility
I do not accept Constable Vu's later testimony that he uses "possible" to mean "probable", and that he is not intending in its usage something less than reasonable and probable grounds. Vu was a thoughtful, informed officer regarding his legal authority. He gave several answers to search-related questions – for example, regarding the limits of search incident to arrest involving blood drawn by a hospital – that were clear, considered and legally correct. I do not accept that such an officer would interchangeably use "possible" and "probable" in this legal setting.
[49] Lack of Reasonable Grounds
It is clear to me that what has occurred is that Constable Vu was operating on the same misapprehension as the Crown – that he could seize vehicles post-collision on something akin to a suspicion-based standard. That is why he repeatedly answered that the investigation was in very early stages at the time of seizure, and why his notes are silent on him forming a belief – to the reasonable grounds standard – that dangerous driving had taken place. It is because he had not yet formed such a belief when he made the investigative decision to seize the applicant's truck.
[50] Unlawful Vehicle Seizure
In the absence of reasonable grounds existing at the time of seizure, s. 489(2) does not provide authority for the vehicle seizure that took place. It is therefore unreasonable and a violation of s. 8 of the Charter. The mechanical inspection that subsequently occurred was, by necessity, conducted unlawfully: R. v. Young. In my view, however, it is important to be clear about why that is. In the absence of a lawful seizure, the search intruded upon the applicant's reasonable expectation of privacy in his vehicle. The inspection can only occur when the police have possession of the vehicle. The applicant's interest in the vehicle is both informational, as it related to the airbag data, and territorial, as it related to the vehicle itself: see R. v. Belnavis, at paras. 19-22; R. v. Anstie, 2019 ONSC 976, at paras. 25-31; R. v. Fedan, 2016 BCCA 26, at paras. 62-66. The inspection of an unlawfully seized vehicle intrudes upon the applicant's territorial privacy interests.
[51] Privacy Interests and Lawful Seizure
Had the vehicle been lawfully seized, these privacy interests would have been extinguished, such that the mechanical inspection would not have constituted a "search" for Charter purposes. R. v. Fedan is directly on point – the vehicle in that case was lawfully seized, and the B.C. Court of Appeal ruled, in those circumstances, that the appellant thereafter did not possess a "residual territorial interest" in the vehicle's components and contents: paras. 73, 78. The lawful seizure carried with it a permissible right of examination.
[52] Mechanical Inspection Analysis
The mechanical inspection that occurred in Mr. Patterson's case was described as putting the truck up on a lift and removing various parts, such as the tires, for inspection and measurement. It is on this evidentiary record that I make the finding that, while Mr. Patterson had a reasonable expectation of privacy in relation to his truck (he owned it, he and his wife had sole use of it, they could restrict access to it), a lawful s. 489(2)(c) Code seizure would have extinguished all relevant interests. I appreciate the applicant's position that s. 489(2) does not provide authority to search, and I agree with that statement. The distinction I draw is between a search pre-seizure (which is prohibited), and this kind of inspection, post-seizure. In my view there is no privacy interest at play here that survives a lawful seizure; for example, like the informational privacy interest that persists in airbag data: R. v. Hamilton, 2014 ONSC 447; R. v. Glenfield, 2015 ONSC 1304; Attard, supra.
[53] Balance Between Privacy and Law Enforcement
Stepping back for a moment, section 8 jurisprudence, at its most basic, is an attempt to strike an appropriate balance between privacy and effective law enforcement. In my view, that balance is achieved in this context by permitting inspections, like the one that occurred here, on lawfully seized vehicles. It is only when a reasonable privacy interest survives seizure – like the informational privacy interest in airbag data – that an additional search authority, like a warrant, is required. In drawing this conclusion, I take comfort from the Court of Appeal's discussion of subsequent smartphone searches in the recent decision of R. v. Nurse, 2019 ONCA 260. In that case, data was extracted from Blackberry devices and analyzed, pursuant to warrant. A year later, the forensic software updated, and a subsequent examination of the data occurred, revealing certain incriminating information. It was argued that this second examination was a further search, requiring a new warrant. Justice Trotter, writing for the Court, dismissed the argument on the basis that the initial intrusion on the appellant's privacy rights was lawful, and the re-examination did not "further defeat the appellant's privacy interests… the right balance was struck" (emphasis in original, para. 141).
[54] Regulated Activity
Achieving the right balance in the mechanical inspection context should include adverting to the nature of the privacy right being discussed. Driving in Ontario is a regulated activity, and there are limits to privacy when drivers choose to operate inherently dangerous vehicles on public roadways: R. v. Belnavis, para 39. In certain circumstances, the Highway Traffic Act even permits warrantless vehicle inspections: see HTA, s. 82.
[55] Conclusion on Mechanical Inspection
In conclusion on this point, I do not accept that the mechanical inspection was an additional Charter violation, separate and apart from the unlawful vehicle seizure that preceded it. However, in the present case, the results of the inspection were nevertheless obtained in violation of the Charter.
(h) The Crown Concedes the Delayed Report to Justice Was a Charter Violation
[56] Delayed Report
The Crown has conceded that the report to justice's filing in this case was not as soon as practicable and amounts, on this record, to a s. 8 violation.
(i) The Airbag Data Was Also "Evidence Obtained in a Manner"
[57] Airbag Data Warrant
The airbag data was obtained via warrant. Certain prerequisites for that warrant are undermined on this review. Specifically, there is no basis to believe the truck would have been at Skyway Towing, but for the unlawful seizure. When the presence of the truck is excised, the warrant could not issue. The seizure of the air bag data was unlawful.
[58] Reasonable Grounds for Warrant
Separate and apart from this deficiency, however, I was satisfied that the information to obtain, post excision, still contained reasonable grounds to believe that an offence had been committed. The combination of the roadway description and Brandon Gage's observations of the truck crossing the centre line provide an adequate evidentiary basis, one that could have satisfied an issuing justice that an offence had occurred, and that examination of the ACM would afford evidence of that offence. In my view, the affiant's experience in the Collision Reconstruction Unit would allow the issuing justice to assign weight to paragraph 16 of the affidavit. I make this finding largely in the event it becomes relevant in the upcoming s. 24(2) submissions.
III. DISPOSITION
[59] Charter Violations and Exclusion
The applicant's Charter rights were violated by the police during the investigative process in this case. I will hear submissions from the parties on what appropriate exclusionary steps are required.
Released: November 20, 2020
Justice Scott Latimer
(Signed electronically)
Footnotes
1See also R. v. Jones, 2011 ONCA 632, at para. 73: "Implicit in the s. 489 power is the premise that the law enforcement officer has come across or seen something in the course of a lawful search. The law enforcement officer must have reasonable and probable grounds to believe that that something 'will afford evidence' of a crime."; and R. v. Clarke, 2017 BCCA 453, at para. 69: "… s. 489(2) only permits seizure, not a search. The firearms were not visible or in 'plain view' in the garage. They were covered by a pile of the appellant's other items, and a tarp. Because s. 489(2) does not authorize a search, it cannot serve as lawful authority for the search of the pile of items that resulted in seizure of the firearms."
2R. v. Evans, at para. 11: "… not every form of examination conducted by the government will constitute a 'search' for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a 'search' within the meaning of s. 8."
3Similar principles were discussed, in a different context, in R. v. Oland, 2015 NBQB 243, at para. 187.