DATE: 2001-09-07
DOCKET: C33748
COURT OF APPEAL FOR ONTARIO
DOHERTY, ROSENBERG and MOLDAVER JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN Respondent
- and -
AUSTIN TERRY COLBOURNE Applicant/Appellant
Counsel: Paul Burstein for the appellant Scott Hutchison for the respondent
Heard: July 12, 2001
On appeal from the conviction imposed by Justice S. Bruce Durno dated November 23, 1999 and the sentence imposed dated January 28, 2000.
DOHERTY J.A.:
[1] The appellant was convicted by a judge, sitting without a jury, of impaired driving causing death and was sentenced to 4 years in the penitentiary.[^1] He appeals from his conviction.
[2] For the reasons that follow, I would dismiss the appeal.
I
[3] The trial was lengthy and many issues were litigated. The appeal, however, focuses on the admissibility of the results of a blood/alcohol analysis performed by the Centre of Forensic Sciences on a sample of the appellant’s blood seized from the Georgetown Hospital under the authority of a search warrant.[^2] The appellant contends that the warrant was invalid. He also submits that on the voir dire to determine the validity of the warrant, the trial judge improperly held that the prosecuting attorney could not be called as a witness.
[4] A summary of the evidence relied on by the trial judge in making his findings of fact will provide the backdrop necessary to understand the issues raised on this appeal.
[5] The appellant was driving his truck southbound on a two lane highway at about 7:15 p.m. on September 1st, 1996. The road was dry and flat, the weather was clear, and the driving conditions were ideal. The appellant’s friend, Owen Budgell, was seated in the front passenger seat.
[6] The appellant, driving in excess of the speed limit of 80 km per hour, drove up behind another southbound vehicle and tailgated that vehicle for some distance. Both cars were travelling at the speed limit. Suddenly, and for no apparent reason, the appellant’s truck veered into the northbound lane, over the gravel shoulder on the east side of the road, and across the ditch. The truck became airborne and struck a tree. Mr. Budgell was killed.
[7] Police Constable Henry, the principal investigating officer, attended at the scene about one half hour after the accident. The appellant was receiving medical attention. Constable Henry detected a strong odour of alcohol on the appellant’s breath. He also observed that the appellant’s face was red and flushed.
[8] Constable Henry asked a number of people at the scene whether they also smelled alcohol on the appellant’s breath. No one questioned by Constable Henry smelled alcohol on the appellant’s breath. A paramedic testified at trial that he noticed a smell of “something like alcohol” when he removed the appellant’s oxygen mask at the hospital.
[9] The appellant was taken by ambulance to the Georgetown Hospital. He was conscious. Samples of his blood were taken with his consent for medical purposes. Constable Henry became aware that blood samples had been taken. After an attempt to obtain a breathalyzer sample was aborted on the mistaken belief that the Criminal Code did not authorize the taking of the sample, Constable Henry was directed by a superior to place a seal on one of the appellant’s blood samples to preserve continuity should the police decide to seize the sample.
[10] A blood sample was eventually seized from the hospital 6 days later pursuant to a search warrant obtained by Constable Henry. At trial, it was argued that the Crown had not established that the blood sample seized from the hospital came from the appellant and that the Crown had not established the “integrity” of the sample seized. The trial judge found against the appellant on both issues and neither finding is challenged on appeal. The appeal proceeded on the basis that the blood seized from the hospital was the appellant’s blood and that the blood/alcohol levels found in the analysis relied on by the Crown were accurate.
[11] According to the results of the analysis of the appellant’s blood and the expert evidence interpreting those results, the appellant’s blood/alcohol level at the time of the accident was between 232 and 255 milligrams of alcohol in 100 millilitres of blood. The expert testified that at those very high levels (about three times the legal limit), a person’s vision, perception, judgment and reaction time would all be impaired. Notwithstanding this physical impairment, that same person might show few outward signs of impairment if he or she had a high tolerance for alcohol.
[12] The appellant did not testify.
[13] The trial judge, after a careful and thorough review of the evidence, summarized his findings of fact in these words:
There is no evidence why this accident occurred, other than the driving of Mr. Colbourne. In addition, from the impact on the tree, I can infer the truck was still travelling at a high rate of speed when it impacted against that tree, some distance off the road. There is evidence of bad driving. The physical symptoms are minimal: blood shot eyes, odour of alcohol and flushed face. But, I also have the blood/alcohol concentration to consider. Having found the samples admissible and that it was Mr. Colbourne’s blood, the expert evidence, in addition to the above noted factors, satisfies me beyond a reasonable doubt that Mr. Colbourne’s ability to operate a motor vehicle was impaired by alcohol.
II
The Admissibility of the Analysis of the Blood Sample
(i) The events at the hospital
[14] The appellant was taken to the Emergency Department at the Georgetown Hospital at about 8:00 p.m. on September 1st. He was conscious and breathing on his own with the assistance of an oxygen mask. At about 8:15 p.m., the attending physician instructed Jane Cartwright, a hospital technician, to take samples of blood from the appellant. The appellant agreed that Ms. Cartwright could take the samples.[^3] The trial judge found that the samples were taken by hospital personnel for medical purposes only and without any police involvement. That finding is not challenged on appeal.
[15] Shortly after the samples were taken, Constable Henry arrived at the hospital. He was told by the attending physician that the appellant was conscious and could provide a breath sample. Constable Henry took this as an indication from the doctor that he could speak with the appellant. Constable Henry spoke briefly with the appellant and confirmed the observations he had made earlier concerning the appellant’s consumption of alcohol. He placed the appellant under arrest.[^4] Henry next read the appellant his rights to counsel and asked him whether he understood those rights. The appellant asked that his oxygen mask be removed. The attending physician then told Constable Henry that further medical treatment was necessary and he asked Henry to stop questioning the appellant. Henry did so, but remained in the Emergency area in the immediate vicinity of the appellant.
[16] At about 8:50 p.m., Constable Henry asked Ms. Cartwright to provide him with a sample of the appellant’s blood. She refused. He then asked her to be careful with the samples she had taken as they may be needed for investigative purposes.[^5] At about 9:30 p.m., the breathalyzer technician decided that under the law as he understood it, he could not demand a breathalyzer sample from the appellant. Once a breathalyzer was no longer an option, the potential seizure of the blood sample became a very real possibility. Sergeant Brandt told Constable Henry to place a police seal on the vial containing the sample of the appellant’s blood which had been taken earlier that evening. Ms. Cartwright allowed Constable Henry to mark one of the vials. She had done this many times in the past.[^6]
[17] The appellant was allowed to leave the hospital and go home with his wife of about 10:20 p.m. He was no longer under arrest and was not formally charged that evening.
[18] Constable Henry also testified that at some unspecified time on the evening of September 1st, he overheard hospital personnel talking about the test results of a blood sample which showed the presence of alcohol in the blood. Constable Henry took this to be a reference to the appellant’s blood. He could not recall where he was in the hospital when he overheard this conversation or who made the comment. Constable Henry recalled a reference to a figure in the range of 50 to 57. This number apparently referred to a measurement in millimoles. Constable Henry did not know how much alcohol that figure represented, but took the comment as some verification of his opinion that the appellant had consumed alcohol. Constable Henry made no notes of this comment and did not tell anyone about it until September 6th.
(ii) The search warrant applications
[19] Constable Henry made two applications for a warrant to seize samples of the appellant’s blood held at the Georgetown Hospital. He made the first application on September 3rd. That application was refused. He made a second application before a different Justice of the Peace on September 6th. A warrant was issued on that date and subsequently executed at the Georgetown Hospital.
[20] The facts surrounding the applications for the search warrant and the intervening events were hotly disputed at trial. The trial judge’s findings of fact turned in large measure on his assessment of the credibility and reliability of Constable Henry’s testimony. Constable Henry was inexperienced and it showed. This was his first fatal accident investigation and his first application for a search warrant. He did not understand the authority given to him under the Code to make a breath demand and he did not appreciate the constituent elements of a proper arrest. Constable Henry’s memory was not good and his notes were inadequate.
[21] The trial judge was aware of these shortcomings. His assessment of Henry’s credibility and reliability is found in the following passage from his judgment:
At the outset, I will deal with the credibility of Police Constable Henry which was placed in issue by the applicant. There is no dispute that he was a relatively inexperienced officer as of September 1st 1996. Similarly, there was no dispute that this was his first fatal motor vehicle accident he had investigated and the first search warrant he had applied for. I agree that he had a poor recollection of many of the events which likely is reflective of inadequate note-taking. His evidence was wanting in terms of precision and detail. Too frequently his responses to the suggestion made in cross-examination were, “it was possible” that a certain thing occurred. He could hardly be described as a seasoned witness. Too often the language was loose as he attempted to explain events. Having said that, however, having observed his demeanour in the witness box and upon reviewing his evidence, I am not prepared to say that he lied under oath before me. In general, I found his evidence to be credible but lacking in precision.
[22] Counsel for the appellant does not suggest that this court should interfere with the trial judge’s assessment of Constable Henry’s evidence. I accept that assessment.
[23] Constable Henry prepared the information in support of the first request for a search warrant on his own. He used a pre-printed form and was unaware of the practice of attaching appendices to the pre-printed form which, among other things, set out the informant’s reasonable and probable grounds for believing that the material to be seized would afford evidence of the commission of a criminal offence. Constable Henry put his grounds for believing that the appellant’s blood could afford evidence of the commission of a crime in the one-inch space provided in the pre-printed form. He could not recall exactly what he put in that small space. The information sworn by Constable Henry on the first application was destroyed or lost prior to disclosure and was never available to the defence.
[24] The Justice of the Peace refused to issue the warrant. Constable Henry understood that her refusal was based on the lack of detail in the information.
[25] Constable Henry went to the Crown Attorney’s office after the Justice of the Peace refused to issue the warrant. He spoke first with Mr. MacKinnon, an assistant Crown Attorney, and later with Mr. MacKinnon and Mr. O’Marra, the senior Crown Attorney. Mr. MacKinnon, who eventually assumed carriage of the prosecution, and Constable Henry spoke with the Justice of the Peace who had refused to issue the warrant. Mr. MacKinnon and Constable Henry then spoke again with Mr. O’Marra.
[26] Constable Henry was sure that these discussions were about the obtaining of a warrant and the reasons why the warrant was refused. He had very little recollection, however, of the specifics of any of the discussions. He testified:
The best I can do is sum up the day. The impression I got was to – instead of just having the one sentence synopsis or appendices in each area of the warrant, the information to obtain, it’s best for me to include as much detail as possible when obtaining the warrant. That’s the information I got from the whole day. I can’t say exactly what happened or what was spoken in that second meeting.
[27] Constable Henry was not scheduled to work on September 4th and 5th. By September 6th, he had decided to prepare a new information and make a second application for a search warrant. He had been told by MacKinnon and other more experienced police officers that he should put more detail in the second application. He was told about the practice of using appendices to set out in detail the grounds upon which the warrant was requested. Constable Henry anticipated that he would make his second application for a search warrant before the same Justice of the Peace who had refused the warrant on the first application.
[28] On September 6th Constable Henry met with Mr. MacKinnon to discuss his information to obtain a search warrant. Constable Henry had little recollection of the specifics of this conversation. He did recall, however, that he told Mr. MacKinnon about the conversation he overheard in the hospital which he took to be a reference to a blood/alcohol level in the appellant’s blood sample.
[29] After speaking with Mr. MacKinnon, Constable Henry prepared a second information to obtain a search warrant. That information was filed on the motion to exclude the evidence of the analysis of the blood seized from the Georgetown Hospital. The information had three appendices attached to the pre-printed form. Appendix “A” described the items to be seized (blood samples of the appellant held at the Georgetown Hospital). Appendix “B” set out the criminal offences with respect to which the evidence was sought (impaired driving causing death, dangerous driving). Appendix “C” set out the grounds for Constable Henry’s belief that the blood samples would afford evidence of the commission of the crimes described in Appendix “B”.
[30] Appendix “C” consisted of 1 1/2 pages of single spaced type. The information set out in Appendix “C” included the following:
- The observation of the driver of the vehicle approached by the appellant’s vehicle that the appellant’s vehicle approached “at a high rate of speed” and “followed too closely”.
- The observation of a second eyewitness that the appellant’s vehicle was following another vehicle “too closely”.
- The observations of three eyewitnesses to the effect that for no apparent reason, the appellant lost control of his vehicle at which time the vehicle went across the two-lane highway, over the ditch, became airborne and struck a tree.
- A description of the road as “straight, level, dry and well maintained”.
- A description of Constable Henry’s observations of the appellant at the scene of the accident (strong odour of alcohol, bloodshot eyes and a flushed face).
- The fact that Constable Henry arrested the appellant at the hospital for impaired driving.
- The fact that samples of the appellant’s blood were taken at the hospital and that one was sealed by the police.
[31] In addition to the information described above, Appendix “C” also contained the following:
On one occasion when PC Henry was passing through the Emergency area he overheard the hospital staff and Laboratory Technician indicating that the alcohol in Mr. Colbourne’s blood to be in the 50 range (possibly 54 to 57). This reinforced PC Henry’s opinion that he had alcohol in his body.
[32] Although Constable Henry fully intended to make his second application before the Justice of the Peace who had refused the first application, the Justice of the Peace office at the courthouse was closed by the time Constable Henry had completed the necessary documentation on September 6th. He was told that a Justice of the Peace was available at a nearby correctional institution. Constable Henry attended before that Justice of the Peace to make his second application. This Justice of the Peace was not the same person who had refused the first application. The information sworn in support of the second application for a search warrant made no reference to the initial refusal. The Justice of the Peace who granted the search warrant on September 6th was not aware that another Justice of the Peace had refused to issue a search warrant three days earlier.
[33] Constable Henry executed the search warrant and seized a vial of the appellant’s blood from the Georgetown Hospital. Ms. Cartwright, who had drawn the blood, gave the vial to Constable Henry.
[34] The trial judge made several findings of fact, none of which can be successfully challenged on appeal. He found:
- That the information presented on the second application for a search warrant was significantly different from the information presented on the first application. The first information contained “one liners” in the small space provided on the pre-printed form. The second information contained “far more detail” and related the grounds upon which Constable Henry believed that the blood sample would provide evidence of the commission of the offence of impaired driving causing death or dangerous driving.
- The additional information included, but was not limited to, the conversation which Constable Henry said he had overheard in the hospital to the effect that the blood sample contained alcohol.
- When preparing the second information, Constable Henry believed that he would make his second application for a search warrant to the same Justice of the Peace who had refused the first warrant. He honestly, but mistakenly, believed that it was not necessary to include reference to the initial refusal in his second application for a search warrant.
[35] The trial judge also concluded that although the disclosure by hospital personnel to Constable Henry of information concerning the appellant’s blood/alcohol level was inadvertent, and Constable Henry did not seek out that information, its disclosure to him amounted to a breach of the duty of confidentiality owed to the appellant by the hospital personnel. The trial judge found that when Constable Henry received that information, the appellant’s rights under s. 8 of the Charter were breached. He excised that comment from the information relied on to obtain the warrant before deciding on the validity of the warrant.
[36] On appeal, the Crown argued that the trial judge was wrong in holding that the appellant’s rights under s. 8 of the Charter were breached when Constable Henry inadvertently overheard the conversation concerning the appellant’s blood/alcohol level. It is unnecessary to decide this issue. I will assume the trial judge was correct and that the overheard conversation was properly excised by him from the information relied on to obtain the warrant.
(iii) The validity of the warrant
[37] I begin with an examination of the information relied on to obtain the warrant apart from any allegations of fraud, non-disclosure, misleading disclosure or new evidence. In my view, even if the overheard reference to the blood/alcohol level is excised, the facts relied on in the second information provided adequate grounds for the issuing of a warrant to seize the vial of the appellant’s blood. The description of the appellant’s driving immediately before the accident, the description of the accident itself, the absence of any apparent “innocent” explanation for the accident, and Constable Henry’s observations of the appellant at the scene provided a basis upon which a Justice of the Peace acting judicially could grant the warrant.
[38] I next consider the accuracy of the facts as set out in the information. At trial it was argued that the description of the appellant’s vehicle as approaching another vehicle “at a high rate of speed” was false or at least inaccurate. That argument was not pressed on appeal. In my view, there is no significant difference between the description of the vehicle as travelling at a high rate of speed and the witness’s indication that the vehicle was travelling in excess of the speed limit. In my view, none of the material allegations in the information was false or materially inaccurate.
[39] The appellant’s main arguments turn on allegations of non-disclosure of material facts in the information used to obtain the warrant. The appellant submits that Constable Henry’s failure to disclose to the second Justice of the Peace that another Justice of the Peace had refused to issue a warrant constituted material non-disclosure. Crown counsel acknowledges that Constable Henry should have made that disclosure. He submits, however, that the failure to disclose the earlier refusal does not automatically render the warrant invalid. Counsel for the appellant accepts this submission: R. v. Eng (1995), 1995 CanLII 1794 (BC CA), 56 B.C.A.C. 18 (C.A.).
[40] The reasons for and the nature of the non-disclosure of the prior refusal are important considerations in determining the effect of that non-disclosure on the validity of the warrant. If the non-disclosure was for some improper motive or was intended to mislead the Justice of the Peace before whom the second application was made, that non-disclosure standing alone may well invalidate the warrant despite the presence of reasonable and probable grounds to issue the warrant: R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 at 127 (Ont. C.A.); R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 at 553 (N.S.C.A.); R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at 473 (S.C.C.). On the findings of the trial judge, that is not this case.
[41] Where the non-disclosure is not the product of an improper motive or part of an attempt to mislead the Justice of the Peace, the question becomes whether the second Justice of the Peace acting judicially and having been advised of the prior refusal could have issued the search warrant. I have no hesitation in answering that question in the affirmative. The trial judge found that the information presented on the second application was substantially different from the information presented on the first application. The second information contained a much more detailed description of the grounds upon which the warrant was sought. In these circumstances, disclosure of a prior refusal based on a consideration of an entirely different information would not have precluded the issuing of a warrant by the second Justice of the Peace. In fact, given the significant differences between the two informations, the first refusal would have little relevance to how the Justice of the Peace exercised his discretion on the second application.
[42] I would observe that had the second information been the same as the first information, the initial refusal would have played a much more significant role in how the second Justice of the Peace exercised his or her discretion. Indeed, in R. v. Eng, supra, at para. 49, Wood J.A. thought it improper to make successive applications based on the same information. As the information in this case were very different, I need not decide whether I would go so far as to say that two applications based on the same information are improper even if full disclosure of the initial refusal is made. I leave that question for a case where it arises on the facts.
[43] Counsel for the appellant also submits that there was non-disclosure to the Justice of the Peace of certain exculpatory information known to Constable Henry when he applied for the search warrant. Counsel refers to three items: the person driving the car in front of the appellant told Constable Henry that the appellant did not appear to be driving dangerously immediately before the accident; no one at the scene of the accident other than Constable Henry noticed the smell of alcohol on the appellant’s breath; and Constable Henry did not see any indicia of impairment other than the two he referred to in the information. The last of these three items is not properly characterized as non-disclosure. Constable Henry described the indicia of impairment that he observed. It was implicit that he did not observe any other indicia of impairment. His failure to specifically enumerate the things he did not see does not constitute non-disclosure.
[44] The trial judge considered the other items said by the appellant to constitute material non-disclosure. He found that the failure to refer to these items was not “fatal” to the validity of the warrant. I agree. The opinion of the other driver that the appellant was not driving dangerously is of little significance when considered in conjunction with her actual observations of the appellant’s vehicle. She saw the appellant’s vehicle speed up behind her, follow her too closely, and for no apparent reason, travel across two lanes, over a ditch and through the air into a tree. These observations were included in the information prepared by Constable Henry. Similarly, the fact that others did not smell alcohol on the appellant’s breath does not mean that Constable Henry’s observations were unreliable. Constable Henry was investigating the accident and looking for signs of alcohol consumption. Even if the Justice of the Peace had been advised that others at the scene had not smelled alcohol, he still, acting judicially, could have issued the search warrant. The alleged non-disclosure does not invalidate the warrant.
[45] I agree with the trial judge’s conclusion that the warrant was valid and that the seizure made under the auspices of that warrant did not violate the appellant’s rights under s. 8 of the Charter.
III
[46] The final submission made by the appellant challenges the trial judge’s ruling that Assistant Crown Attorney MacKinnon would not be required to give evidence on the voir dire to determine the validity of the search warrant. At trial, counsel argued that Mr. MacKinnon might have some recollection of the contents of the first information. Counsel submitted that as the differences, if any, between the first and second informations were central to the attack on the warrant, Mr. MacKinnon’s evidence was material. Counsel for the appellant at trial recognized that compelling the prosecuting attorney to testify was an extraordinary step. In addition to the materiality of Mr. MacKinnon’s evidence, counsel relied on the prosecution’s loss or destruction of the first information and Constable Henry’s very limited recollection of the contents of that information, in support of his motion to compel Mr. MacKinnon to testify on the voir dire.
[47] Trial counsel also submitted that Mr. MacKinnon might have some recollection of the conversations he had with the Justice of the Peace and Constable Henry on September 3rd and the conversation he had with Constable Henry on September 6th. Counsel submitted that this evidence could shed light on Constable Henry’s veracity and the bona fides of his conduct in obtaining the warrant without making disclosure of the earlier refusal.
[48] In bringing this application at trial, counsel made it clear that the defence was not impugning Mr. MacKinnon’s conduct or challenging his integrity. In particular, defence counsel did not question the propriety of Mr. MacKinnon’s speaking with the Justice of the Peace who had refused to issue the warrant.
[49] The defence acknowledgement that it had no reason to question the conduct or integrity of Mr. MacKinnon is a significant factor in considering the motion to compel Mr. MacKinnon to testify on the voir dire. To the extent that he had relevant information to disclose and was bound to disclose it, there is no suggestion that he failed to make that disclosure. Therefore, the defence contention that examination of Mr. MacKinnon could provide material evidence as to contents of the first information or the various conversations involving Mr. MacKinnon comes down to an assertion that under questioning Mr. MacKinnon might recall information that he had not previously recalled, and had not therefore disclosed to the defence.
[50] It is certainly a possibility that under questioning, Mr. MacKinnon might have recalled matters that he had not previously recalled. But a possibility is not enough to justify compelling any person to testify, much less compelling prosecuting counsel to give evidence. In R. v. Harris (1994), 1994 CanLII 2986 (ON CA), 93 C.C.C. (3d) 478 at 480 (Ont. C.A.), which both counsel accept as the controlling authority, the court held:
In our view, it is not sufficient to sustain the subpoena that the witness “may have” evidence material to the case. The burden was on the respondent to establish that Murphy [the prosecutor] was likely, or to put it another way, would probably have evidence material to the issues raised.
[51] The court went on to observe at p. 480 that compelling a prosecuting counsel to testify if he or she might have relevant evidence to give would countenance what was in reality a “fishing expedition” that could significantly disrupt the trial process. It is well established that while a prosecuting counsel (or defence counsel) is a compellable witness, he or she should only be compelled to abandon the role of counsel and assume the role of witness in cases where the proper administration of justice demands that counsel become a witness: R. v. Kyling, [1996] Q.J. No. 1566 (Que. Sup. Ct.).
[52] The position taken by the appellant at trial is on all fours with the position rejected in R. v. Harris, supra. Counsel had a hope, one might even say a reasonable hope, that Mr. MacKinnon could shed some additional evidentiary light on the relevant events. Counsel could not, however, establish that it was probable that Mr. MacKinnon could do so.
[53] Whether considered from the perspective of the power to subpoena witnesses contained in s. 699 of the Criminal Code, or from the vantage point of an accused’s right to make full answer and defence, I am satisfied that the trial judge correctly held that prosecutor MacKinnon should not be compelled to testify on the voir dire.
[54] On appeal Mr. Burstein advanced a variation on the argument made at trial. He accepted, for the purposes of his argument, that Mr. MacKinnon could not give material evidence based on his recollection of the contents of the first information or his recollection of the various conversations to which he was a party on September 3rd and 6th. Mr. Burstein submitted, however, that Mr. MacKinnon might be able to give evidence that he had an established practice which he followed in cases where police officers sought his assistance after an initial request for a search warrant was refused. Mr. Burstein suggested that it might be Mr. MacKinnon’s established practice to instruct the officer that full disclosure of the first application had to be made in the information sworn on the second application. Mr. Burstein also suggested that Mr. MacKinnon’s practice might also be to instruct the officer that the first information had to be preserved so that full disclosure could eventually be made to the defence. Mr. Burstein went on to submit that if Mr. MacKinnon had these practices, he could give evidence to that effect. Were he to do so, the trial judge might infer that although MacKinnon had no present recollection of what he had said to Constable Henry, he had in fact followed his established practice. If the trial judge drew that inference, says Mr. Burstein, it would put Constable Henry’s evidence in an entirely different light.
[55] There are two fundamental problems with this line of attack. First, it was not argued before the trial judge. The determination of whether it is probable that a person has material evidence to give involves an exercise of the trial judge’s discretion. I would not be disposed to hold that the trial judge erred in the exercise of that discretion by declining to compel Mr. MacKinnon to testify on grounds that were not argued before him.
[56] Second, Mr. Burstein’s argument is as speculative as that put forward by trial counsel. Mr. Burstein can put his position no higher than to claim that Mr. MacKinnon may have had the practices outlined above. As with the contention made at trial, Mr. Burstein’s position falls below the requisite probability standard.
IV
[57] As I am satisfied that the trial judge did not err in holding that Mr. MacKinnon should not be required to testify, and that he correctly held that there was no violation of s. 8 of the Charter, it is not necessary for me to address s. 24(2) of the Charter. I will, however, do so briefly.
[58] I agree with the trial judge’s characterization of the blood sample as non-conscriptive evidence. The sample was initially taken from the appellant with his consent by hospital personnel for medical reasons. The hospital personnel were not acting on behalf of the police. The police subsequently seized the sample when it was in the possession of the hospital. In my view, R. v. Colarusso (1994), 1994 CanLII 134 (SCC), 87 C.C.C. (3d) 193 (S.C.C.), controls. Under that authority, the blood sample is properly characterized as non-conscriptive evidence. R. v. Stillman (1997), 1997 CanLII 384 (SCC), 113 C.C.C. (3d) 321 (S.C.C.), the authority relied on by the appellant, speaks to the seizure of bodily substances from the person of the accused by the state. Nothing said in R. v. Stillman, supra, detracts from the authority of R. v. Colarusso, supra. Once it is accepted that the evidence was non-conscriptive, it follows that its admission into evidence would not adversely affect the fairness of the trial.
[59] As I agree with the trial judge’s description of the evidence as non-conscriptive, there is no basis upon which this court could interfere with the trial judge’s balancing of the relevant factors and his ultimate determination that even if the seizure of the sample violated s. 8 of the Charter, the appellant had not established that the sample and the analysis of the sample should be excluded under s. 24(2) of the Charter.
[60] I would dismiss the appeal.
RELEASED: “SEPT 7 2001”
“DD”
“Doherty J.A.”
“I agree M. Rosenberg J.A.”
“I agree M.J. Moldaver J.A.”
[^1]: The trial judge also found the appellant guilty of dangerous driving and driving with a blood alcohol level over the legal limit. The trial judge entered conditional stays on both of these charges. [^2]: The admissibility of hospital records containing the results of blood/alcohol tests done by the hospital was also challenged. The admissibility of those records becomes important only if the analysis done by the Centre of Forensic Sciences is excluded under s. 24(2) of the Charter of Rights and Freedoms. As I would not exclude that evidence, I need not consider the admissibility of the hospital records. [^3]: There was some uncertainty at trial as to whether Ms. Cartwright took 2 or 4 samples. The number of samples taken is irrelevant for the purposes of the appeal. [^4]: The trial judge found Constable Henry had reasonable and probable grounds to arrest the appellant on a charge of impaired driving. [^5]: It is unclear when Henry became aware that samples had been taken. It seems that the information came to him while he was in the area of the hospital where the appellant was receiving treatment. At trial it was argued that when Henry overheard that samples of blood had been taken from the appellant, he unconstitutionally seized that information from the appellant. The trial judge rejected that argument and it is not advanced on appeal. [^6]: At trial it was argued that when Henry placed a police seal on the vial, he effectively seized the blood. The trial judge rejected this argument and it was not renewed on appeal.