CITATION: R. v. Manders, 2007 ONCA 849
DATE: 20071206
DOCKET: C43085
COURT OF APPEAL FOR ONTARIO
CRONK, JURIANSZ and WATT JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
MICHAEL CLARE MANDERS
Appellant
Counsel: Robert C. Sheppard for the appellant Peter Scrutton for the respondent
Heard: November 15, 2007
On appeal from the conviction entered on November 9, 2004 by Justice Joseph G. Quinn of the Superior Court of Justice, sitting without a jury.
WATT J.A.:
[1] At the appellant’s trial before a Superior Court judge, the principal controversy had to do with the validity of two search warrants that authorized search for and seizure of treatment records and blood samples at a local hospital. The records were compiled and blood samples taken by hospital staff on the appellant’s arrival at the hospital shortly after he had been involved in a motor vehicle accident.
[2] The informant for both warrants was a provincial constable who had responded to an emergency call to the accident scene. After a brief preliminary investigation, the officer drove to the hospital where he saw emergency room staff examining and treating the appellant. At the accident scene, the officer had noticed that the appellant had injuries to his lower body and was belligerent with emergency workers.
[3] The informant returned to the accident scene where he learned that the speedometer of the car driven by the appellant had locked at 140 km/h. He noticed an empty beer bottle and beer carton in the interior of the vehicle.
[4] When the informant resumed his regular police duties later on October 28, 2001, he spoke with a probationary constable who had seen the appellant at a wedding reception within an hour before the accident. The probationary constable told the informant that he (the probationary constable) had seen the appellant make several trips to the bar at the wedding reception and had last seen the appellant, drink in hand, standing unsteadily at the bar. The appellant appeared to be under the influence of alcohol.
[5] On October 31, 2001, the informant confirmed with a hospital employee that all health records about the treatment that the appellant had received at the hospital after the accident were kept in the Health Records Department of the hospital.
[6] On November 1, 2001, the informant sought and obtained a warrant to search for and seize the appellant’s medical records indicating the treatment that the appellant had received at the hospital “due to a motor vehicle accident on the 28th October 2001”. The warrant was executed on the date it was issued.
[7] As a result of the information obtained on execution of the first warrant and discussions with a laboratory technician in the Biochemistry Department of the hospital, the informant sought and obtained a second warrant to search for and seize blood samples taken from the appellant, as well as documents relating to the care, custody or control of those samples.
[8] At trial, the appellant sought to exclude the results of the toxicological analysis of the blood sample taken from him at the hospital. The evidentiary basis for the challenge consisted of the relevant warrants, informations to obtain the warrants, and a transcript of the informant’s evidence at the preliminary inquiry into the charges then outstanding against the appellant. No viva voce evidence was adduced on the admissibility inquiry, nor did the appellant seek leave to cross-examine the informant.
[9] The appellant renewed his claim of constitutional infringement on appeal. Mr. Sheppard contended that the information to obtain the first warrant failed to disclose a basis upon which the justice of the peace could reasonably conclude that the conditions precedent to the issuance of the search warrant under s. 487(1)(b) of the Criminal Code had been met. According to Mr. Sheppard, the information to obtain this warrant contained nothing upon the basis of which the justice could find that there were reasonable grounds to believe:
i. that the appellant had committed any offence listed in the warrant, in particular, a breach of section 253(a) of the Criminal Code; and
ii. that the medical records relating to the appellant’s treatment would afford evidence with respect to the commission of an offence, in particular that blood samples had been taken from the appellant.
[10] I would not give effect to either submission advanced by the appellant.
[11] The test the trial judge was required to apply in determining the complaint of constitutional infringement raised by the appellant at trial was whether there was reliable evidence in the sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant. The test was not whether, in the reviewing judge’s opinion, the warrants should have issued, much less whether the reviewing judge would have issued the warrants himself if asked. See R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1452 per Sopinka J.; and, R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) at p. 473 per LeBel J.
[12] In my view, there was reliable evidence before the issuing justice that might reasonably be believed upon which the justice could conclude that there were reasonable grounds to believe the appellant had committed a driving offence described in the information, in particular, an offence contrary to s. 253(a) of the Criminal Code. The essential finding, which required no determination that the appellant was “at fault” for the accident, was amply supported by the cumulative effect of evidence of:
i. an odour of alcohol on the appellant’s breath;
ii. an empty beer bottle in the passenger compartment of the vehicle driven by the appellant and an empty case of beer in the trunk;
iii. the manner in which the appellant responded to emergency workers at the scene and the informant at the hospital;
iv. the advanced state of intoxication of the appellant’s passenger, Ms. Hastie, confirming the likelihood of the appellant as the driver;
v. the excessive speed at which the appellant’s vehicle was apparently travelling, nearly 50 km per hour in excess of the posted speed limit; and
vi. the observations of the probationary constable who had seen the appellant at a wedding reception within an hour preceding the accident, and noticed that the appellant was unsteady on his feet, apparently under the influence of alcohol, and had made several trips to the bar area at the wedding reception.
[13] I am also of the view that the supportive information disclosed reliable evidence that might reasonably be believed upon which the issuing justice could conclude that there were reasonable grounds to believe that the appellant’s medical treatment records would provide evidence of the appellant’s impairment.
[14] The informant described the medical treatment administered to the appellant at the hospital and the nature of the injuries the appellant had apparently suffered. The officer later confirmed that all health records concerning the appellant’s treatment at the hospital had been retained in its appropriate Health Records Department.
[15] According to the informant, the doctors examining the appellant at the hospital were concerned about back injuries. The appellant had been thrown from the vehicle. The issuing justice was entitled to draw the inference, at the least from the material contained in the information if not from everyday experience, that a routine hospital procedure in the treatment of accident victims whose serious injuries have not yet been determined is to take a blood sample for medical and hospital purposes. See R. v. Katsigiorgis (1987), 1987 4204 (ON CA), 39 C.C.C. (3d) 256 (Ont. C.A.) at p. 260 per Lacourcière J.A.
[16] At trial, the parties argued their respective positions on a basis that included the evidence given by the informant at the preliminary inquiry. There, the officer confirmed the presence of a laboratory technician in the room in which the appellant was being treated. The technician was carrying “a standard small tray … which has got viles [sic] on them …” The informant also gave evidence that, in his experience, hospitals usually screened blood samples routinely taken from accident victims for the presence of alcohol.
[17] It was reasonable for the issuing justice to infer that the appellant’s medical treatment records would indicate the existence of a blood sample, and that such a sample would be screened routinely for alcohol or drugs that might have an effect on any medication that might subsequently be administered. Neither would it have been unreasonable for the issuing justice to infer that the treatment records may well include other evidence. After all, the phrase “evidence with respect to the commission of an offence” in s. 487(1)(b) includes anything relevant or rationally connected to the incident under investigation. See CanadianOxy Chemicals Ltd. v. Canada (Attorney General) (1998), 1999 680 (SCC), 133 C.C.C. (3d) 426 (S.C.C.) at p. 433 per Major J.
[18] In the result, I see no basis upon which to conclude that the warrant to search for and seize medical records was constitutionally flawed.
[19] Mr. Sheppard fairly conceded that if the issuance of the first warrant was sustained, he could advance no ground upon which the second warrant could be independently impeached.
[20] In the absence of a demonstrated constitutional infringement in obtaining the appellant’s blood samples, I do not reach the application of s. 24(2) of the Charter to the evidence of the results of any toxicological analysis of those samples.
[21] For these reasons, I would dismiss the appeal.
RELEASED: DEC 6, 2007 “David Watt J.A”
“I agree E.A. Cronk J.A.”
“I agree R.G. Juriansz J.A.”