Court File and Parties

Court of Appeal for Ontario Date: 20240131 Docket: C68434 Doherty, Lauwers and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

Christopher Singh Appellant

Counsel: Jeff Carolin and Taufiq Hashmani, for the appellant Davin Michael Garg and Andrew Hotke, for the respondent

Heard: September 21, 2023

On appeal from the convictions entered by Justice Shannon B. McPherson of the Ontario Court of Justice on March 29, 2019.

Doherty J.A.:

I Overview

[1] On the morning of August 29, 2016, the appellant was driving westbound on a four-lane street in a residential part of Markham, Ontario. His infant daughter was in the backseat. The appellant drove across the centre line, across one lane of oncoming traffic, and smashed into a vehicle proceeding eastbound in the curb lane. The appellant did not brake or take any evasive action before crashing into the vehicle. The driver of the vehicle and her four-year-old daughter were killed in the crash. The appellant suffered significant injuries. Fortunately, the appellant’s daughter was unhurt.

[2] There was no immediately apparent explanation for the crash. The weather and road conditions were ideal. There was no indication of any mechanical problems, or the involvement of any other vehicles. There was no definitive evidence of excessive speed.

[3] The subsequent analysis of the appellant’s blood alcohol levels revealed an all too common explanation for the crash. He was impaired. The analysis of his blood showed blood alcohol concentrations (“BAC”) at the time of the accident of somewhere between .124 and .164, well in excess of the legal limit. According to the expert evidence, BAC levels even half of those found in the appellant’s blood, would result in a significant level of impairment of the ability to operate a motor vehicle for almost all people. That same evidence indicated that the higher the BAC level, the greater the degree of impairment.

[4] The appellant was charged with two counts of “over 80” causing death, two counts of impaired driving causing death, and two counts of dangerous driving causing death. The trial judge made findings of guilt on all counts. She stayed the convictions on the “over 80” causing death, and the dangerous driving causing death charges, pursuant to the “Kienapple” principle. The trial judge entered convictions on the impaired driving causing death charges and imposed concurrent sentences of 5.5 years on both charges. She also imposed an 8-year driving prohibition.

[5] The appellant appeals conviction only. His appeal focuses exclusively on the admissibility of the BAC results. The appellant argues that the police conduct during their investigation while the appellant was being treated for his injuries at the hospital resulted in various Charter violations. These violations required the exclusion of the BAC results pursuant to s. 24(2) of the Charter. If the appellant is correct and the BAC results should have been excluded, the convictions must be quashed. If those results were properly admitted, the convictions stand.

[6] For the reasons that follow, I would hold that the trial judge properly admitted the BAC results. I would dismiss the appeal.

II The Evidentiary Background

[7] Because the appeal turns entirely on the admissibility of the BAC results, it is unnecessary to review much of the evidence. My review focuses on the evidence relevant to the trial judge’s pretrial ruling on the admissibility of the BAC results.

[8] The accident occurred at about 9:45 a.m. Bystanders rushed to assist the occupants in both vehicles. The paramedics arrived at 9:52 a.m. The appellant was initially unconscious. He regained consciousness at the scene and was disorientated and somewhat combative. He repeatedly asked about his daughter’s condition. He was able to answer the questions asked by the paramedics. None of the persons who dealt with the appellant at the scene reported smelling an odour of alcohol on his breath.

[9] The paramedics took the appellant to the hospital, arriving at about 11:00 a.m. Medical personnel put the appellant in one of several emergency care rooms that surrounded the central nurses’ station in the emergency department. Each room could be cordoned off from the rest of the area with a curtain. It is unclear whether the curtain was drawn when the appellant was in the room.

[10] Shortly after the appellant arrived at the hospital, Constable Andrews was assigned to watch the appellant and provide his superiors with updates on the appellant’s medical condition. Constable Andrews did not know any of the details of the accident and was not told that the appellant was a suspect in any offence. Constable Andrews wanted to stay clear of those rendering medical assistance. He stood off to the side, sometimes just in the emergency care room, and sometimes just outside the room. Constable Andrews made no attempt to speak to the appellant, except on one occasion he tried to calm him down.

[11] At 11:19 a.m., Constable Andrews saw the appellant nod his head in the affirmative in response to his doctor’s question about whether he had been drinking. A short time later, Constable Andrews saw a nurse draw blood from the appellant. The samples were for medical purposes. The nurse told Constable Andrews she had drawn five vials of the appellant’s blood. Constable Andrews decided to accompany her to the lab with the blood samples to preserve their continuity, should the investigators ultimately decide to seek a warrant for the samples.

[12] At about 11:47 a.m., Constable Andrews accompanied the appellant to the CAT scan room. He waited outside while the appellant received a CAT scan. About one hour later, he heard the appellant being told he needed surgery for internal injuries. Constable Andrews saw the surgeon speaking to the appellant and his family at about 1:40 p.m. No one asked Constable Andrews to leave the area of the treatment room at any time.

[13] Detective McDonald arrived in the emergency room at about 12:35 p.m. As the lead investigator, he was anxious to speak with the appellant, the sole adult survivor of the accident. Detective McDonald asked the treating physician whether it was “medically safe” to speak with the appellant. The doctor replied that he had no medical concerns, but that the appellant may be “out of it” on account of the morphine administered at the hospital and the appellant’s alcohol consumption. Detective McDonald and Detective Constable Hazell entered the treatment room intending to try and interview the appellant. They videotaped the interview which began at 1:00 p.m.

[14] The appellant was in and out of consciousness. Detective McDonald advised the appellant he had no obligation to speak with him, and attempted to caution the appellant. Detective McDonald concluded that the appellant was not able to appreciate the caution.

[15] A few minutes into the interview, Detective McDonald bent over the appellant, placed his nose about two inches from the appellant’s mouth, and smelled the appellant’s exhaled breath. He detected a strong odour of alcohol. At Detective McDonald’s request, Detective Constable Hazell did the same thing and also detected a strong odour of alcohol.

[16] Detective McDonald continued his effort to interview the appellant. The appellant became somewhat more responsive. Detective McDonald told him he was under no obligation to say anything and advised him they were investigating the accident as an impaired driving causing death. Detective McDonald asked the appellant whether he wanted to tell him what he had had to drink, indicating to the appellant that the police would eventually find out. The appellant responded in a whisper that he “had a beer”.

[17] After a further three minutes, during which the appellant appeared to be in and out of consciousness, the appellant said, “I can’t do this right now”. Detective McDonald stopped the interview. He was not satisfied he had reasonable grounds to arrest the appellant.

[18] Constable Andrews and Detective McDonald both testified that they routinely entered and stayed in the emergency room area of the hospital, intending to speak to and/or keep an eye on individuals who had been involved in serious car accidents and were being treated in the emergency room. Detective McDonald acknowledged the appellant had a right to privacy in respect of his communications with his doctor, but also indicated that he believed he had a responsibility to investigate an accident in which two people had died. He was never asked to leave the emergency care room.

[19] On August 31, 2016, two days after the accident, Detective McDonald applied for a search warrant to seize the blood samples taken from the appellant by the hospital staff, and a production order requiring the hospital to produce hospital records pertaining to any testing by the hospital of the appellant’s blood. In the information (“ITO”) to obtain the warrant and a production order, Detective McDonald relied on:

• the appellant’s manner of driving;
• the smell of alcohol detected on the appellant’s breath by Detective McDonald and his partner;
• the statement by the appellant’s treating physician to Detective McDonald, to the effect that the appellant had been drinking; and
• the appellant’s affirmative head nod, observed by Constable Andrews, when the appellant’s doctor asked if he had been drinking.

[20] Constable McDonald did not refer in the ITO to the appellant’s admission to him that he “had a beer”.

[21] The Justice of the Peace refused to issue the warrant and the production order. In his view, the statement made by the doctor to Detective McDonald breached the appellant’s right to patient confidentiality and could not be relied on to obtain the warrant or the production order.

[22] On September 1st, Detective McDonald made a second application for a warrant and a production order. He removed the reference to the doctor’s statement. The Justice of the Peace declined to issue the warrant or the production order, referring to concerns about the sourcing of the information provided by Detective McDonald in the ITO, and the absence of sufficient corroboration of the odour of alcohol detected by Detective McDonald and Constable Hazell.

[23] Detective McDonald made a third application for a warrant and a production order on September 16th. In the application, Detective McDonald disclosed the prior applications and the refusals to issue the warrant and the production order. He made various additions and revisions in his ITO. This time, the application was granted. The police seized the appellant’s blood samples and hospital records. Those materials were used in the analyses that eventually led to the BAC readings which the Crown sought to have admitted at trial.

[24] In the ITO relied on to obtain the warrant and production order on September 16th, Detective McDonald did not rely on any of the following:

• the appellant’s affirmative head nod to his doctor when asked if he had been drinking;
• the doctor’s indication that the appellant had consumed alcohol when asked by Detective McDonald if it was medically appropriate for him to speak with the appellant; and
• the appellant’s admission during Detective McDonald’s questioning that he “had a beer”.

[25] The warrant and production order were granted on the basis of the description of the appellant’s manner of driving culminating in the accident, and the odour of alcohol on the appellant’s breath as noted by Detective McDonald and his partner.

III The Trial Judge’s Ruling

[26] The trial judge found that the officers’ smelling of the appellant’s breath while he was lying semi-conscious in the emergency care room violated the appellant’s right under s. 8 of the Charter to “be secure against unreasonable search or seizure”. She excised that information from the ITO and concluded that the rest of the information in the ITO could not justify the issuance of the requested warrant or production order. The seizures of the blood samples and the medical records were, therefore, warrantless and unlawful. Because the seizures were unlawful, they were also unreasonable and infringed the appellant’s s. 8 right.

[27] Having found a Charter violation, the trial judge turned to the admissibility of the evidence under s. 24(2) of the Charter. In her view, on an application of the factors identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the appellant had not established that the blood samples and medical records should be excluded from evidence. She admitted the blood samples, medical records, and BAC results which were based on the samples and records.

[28] The trial judge rejected other arguments that various actions of the police at the hospital amounted to additional s. 8 breaches. She also found that the police had not infringed the appellant’s s. 10(b) rights to counsel, holding that the appellant was not detained by the police while he was in the hospital. Absent detention, the s. 10(b) rights were not triggered.

IV The Grounds of Appeal

[29] The admissibility of the blood samples, hospital records, and BAC results stand or fall together. Either all are admissible, or none are admissible. The blood samples and medical records have evidentiary value only in that they provide the material from which the BAC results were generated. In my analysis of the appellant’s arguments, I will refer simply to the admissibility of the BAC results.

[30] The appellant advances several arguments. First, he submits that the trial judge properly concluded that Detective McDonald and his partner violated the appellant’s s. 8 rights when they leaned over his face in the emergency room and smelled his breath. The appellant also submits the trial judge correctly excised that information from the ITO and properly concluded that the remaining information did not provide adequate grounds upon which the warrant or production order could issue. It follows, argues the appellant, that the trial judge was right in holding that the seizure of the blood samples and medical records was unreasonable and violated the appellant’s s. 8 rights.

[31] The appellant goes on to argue that the trial judge erred in holding that the BAC results should not be excluded under s. 24(2) of the Charter. The appellant submits the trial judge made three errors in her s. 24(2) analysis.

[32] First, the trial judge’s reasons demonstrate a misapplication of the first two factors identified in Grant. Second, in assessing the first two factors, the trial judge erred in law by failing to take into account the other Charter violations which occurred during the police investigation at the hospital. The appellant submits that those breaches, both of s. 8 and s. 10(b), aggravated the nature of the police misconduct, the first factor identified in Grant, and added to the negative impact of the misconduct on the appellant’s Charter-protected interests, the second factor identified in Grant.

[33] In his third argument, the appellant submits that apart entirely from whether Detective McDonald and his partner violated the appellant’s s. 8 rights when they smelled his breath, there were other Charter violations which occurred during the investigation of the appellant at the hospital. The appellant maintains that these violations were sufficiently connected to the ultimate obtaining of the BAC results to warrant the exclusion of those results under s. 24(2).

[34] The Crown responds with three arguments. The Crown submits that even if the trial judge correctly held that the warrant and production order should not have issued, she properly held that the evidence was admissible under s. 24(2). Crown counsel relies heavily on the deference owed by this court to the trial judge’s weighing of the various factors identified in Grant.

[35] Second, and by way of alternative to the first argument, the Crown submits that the trial judge wrongly held that Detective McDonald and his partner violated the appellant’s s. 8 rights when they leaned over and smelled the appellant’s breath while he was lying in his hospital bed. On the Crown’s argument, smelling the appellant’s breath did not infringe upon the appellant’s reasonable expectation of privacy and was, therefore, neither a search nor a seizure. Section 8 was not engaged. The information should not have been excised from the ITO, and with that information included, the ITO provided adequate grounds upon which to issue the warrant and production order. The blood samples and documents seized under the warrant and production order were properly admitted, as were the BAC results. Those results and the evidence describing the nature of the appellant’s driving provided the basis for the convictions.

[36] Third, the Crown submits that the police actions at the hospital did not result in any breach of the appellant’s s. 8 or s. 10(b) rights, much less a breach that could justify the exclusion of the BAC results under s. 24(2). The Crown emphasizes that the BAC results provide reliable evidence that was crucial to the accurate determination of the very serious charges brought against the appellant.

V Analysis

[37] I will begin with the submission that Detective McDonald and his partner violated the appellant’s s. 8 rights when they smelled his breath in the emergency treatment room. For reasons I will explain, the resolution of this ground of appeal is determinative of the appeal. As set out above, the trial judge found a s. 8 breach and the Crown submits she erred in doing so. I agree with the Crown.

A. Was the smelling of the appellant’s breath in the emergency room a s. 8 breach?

(i) The nature of the appellant’s s. 8 claim

[38] Section 8 of the Charter provides:

Everyone has the right to be secure against unreasonable search or seizure.

[39] It is important to begin by understanding the scope of the appellant’s argument. Police officers, when conducting roadside stops, at accident scenes, in ambulances, and in hospitals, routinely smell the breath of drivers for alcohol. Many cases have accepted or assumed that those interactions do not engage s. 8: e.g. R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at para. 6; R. v. Dersch, [1993] 3 S.C.R. 768, at p. 773; R. v. LaChappelle, 2007 ONCA 655, 226 C.C.C.(3d) 518, at para. 28, leave to appeal refused, [2007] S.C.C.A. No. 584; R. v. S.S., 2023 ONCA 130, 422 C.C.C. (3d) 277, at para. 14; R. v. Erickson, 1992 ABCA 69, 72 C.C.C. (3d) 75, at p. 78, aff’d, [1993] 2 S.C.R. 649; R. v. Nagy, 2020 ONSC 203, at para. 18; R. v. Campbell, 2019 ONSC 710, 49 M.V.R. (7th) 117, at paras. 43-47; R. v. Daly, 2014 ONSC 115, 60 M.V.R. (6th) 156, at paras. 16-17; R. v. Kamalanathan, 2017 ONCJ 868, 22 M.V.R. (7th) 331, at paras. 13-17. The trial judge also accepted that those kinds of interactions will not necessarily engage s. 8 of the Charter. I do not understand counsel for the appellant to suggest otherwise.

[40] The appellant, echoing the reasons of the trial judge, submits that it is the particular constellation of circumstances that existed when Detective McDonald and his partner smelled the appellant’s breath that gives rise to the appellant’s reasonable expectation of privacy and the breach of s. 8. In holding that the smelling of the appellant’s breath amounted to an unreasonable search, the trial judge explained:

Detective McDonald did not simply lean in. He constructed a plan to garner that evidence. He videotaped its collection, suggesting to this court that he expected the procedure would afford evidence and then confirmed the results of this procedure by using another officer to do the same thing. All the while, the applicant was semi-conscious and sedated and positioned in his hospital bed. Clearly, there is nothing to support an actual, or an implied invitation, by Mr. Singh to the officers to conduct the sniff in circumstances such as those. …

The purpose of the procedure by Detective McDonald was to capture evidence in this court’s view. It was not an incidental observation like those that were made throughout the stay of the police officers at the hospital. It was an investigative technique employed for the specific purpose of collecting observations for his grounds to make the application for a search warrant. In these circumstances, the action of the police in deliberately seeking and collecting the odour, particularly while the applicant lay sedated and with traumatic injuries in his hospital bed, constituted a search and seizure that engages s. 8 of the Charter.

[41] Counsel for the appellant submits that when assessing the appellant’s s. 8 claim, the trial judge properly focused on the location of the officer’s conduct, a hospital emergency room where the appellant was receiving medical treatment; the appellant’s medical condition, he was, at best, semi-conscious and unable to consent or object to the police conduct; and the police motivation for their action, they were looking for incriminating evidence. Counsel contends that, in these circumstances, the officers, by entering the appellant’s emergency care room, and surveilling the appellant while he was receiving treatment, put themselves in a position to potentially seize the appellant’s “personal health information” [1]. That potential seizure became an actual seizure and interference with the appellant’s bodily integrity when the officers leaned within two inches of the appellant’s face while he was semi-conscious, and smelled his breath. Counsel equate the police actions with a “warrantless search of [the appellant’s] body”.

[42] Counsel further contends that in addition to infringing the appellant’s personal privacy, the police seized the information available from the smelling of the appellant’s breath. That seizure interfered with the appellant’s reasonable expectation of privacy in respect of the information obtained by the police when they smelled the appellant’s breath.

[43] Counsel are correct to focus on the specific circumstances in which the alleged s. 8 violation occurred. Section 8 protects against state intrusions upon a person’s reasonable expectation of privacy in relation to the subject matter of the alleged search: see R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 19; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16; R. v. El-Azrak, 2023 ONCA 440, 427 C.C.C. (3d) 149, at para. 28. A determination of whether a reasonable expectation of privacy exists is a fact-specific and contextual inquiry directed at the subject matter of the search or seizure: R. v. Edwards, [1996] 1 S.C.R. 128, at para. 31; Nader Hasan et al., Search and Seizure (Toronto: Emond, 2021), at pp. 25-27.

[44] Counsel are also correct in their submission that the subject matter of the alleged search or seizure is not limited to the specific thing seized or place searched. As indicated in El-Azrak, at para. 38, “[i]n determining the subject matter of the search, we apply a functional and holistic approach, one that derives from the actual circumstances of the case.”

[45] In this case, it would be too formalistic to describe the thing seized as consisting only of the air exhaled from the appellant’s body. The police “seized” the exhaled air when they took that air into their nose. More significantly, they also seized certain information revealed by smelling that air. By smelling the appellant’s breath, the officers learned that the appellant may, at some time prior to the accident, have consumed some unknown quantity of alcohol. That information was the target of the police activity. The appellant claims a reasonable expectation of privacy in respect of that information: see Spencer, at paras. 30-31; R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 429-430, 431-432; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 14-15.

(ii) Do the trial judge’s factual distinctions make a difference in the s. 8 analysis?

[46] Before turning to the principles governing s. 8 and explaining why, on those principles, the appellant had no reasonable expectation of privacy in the information revealed by his exhaled breath, I will address the specific circumstances relied on by the trial judge to distinguish this case from the many other “breath smelling” cases in which courts have held or assumed that s. 8 is not engaged. Those distinctions do not hold up under scrutiny.

[47] The first distinction arose out of the police purpose. The trial judge distinguished between an officer’s smelling the appellant’s breath as part of the officer’s investigative “plan” to “garner” potentially incriminating evidence, and an incidental smelling of a driver’s breath by a police officer in the course of an interaction with the driver.

[48] In my view, police officers interacting with drivers at the roadside, the scene of an accident, or in an ambulance, who smell a driver’s breath, will very often be engaged in exactly the same kind of process as was Detective McDonald. Like Detective McDonald and his partner, those officers are investigating the possibility that a driver has been drinking. They position themselves to make relevant observations, including smelling the driver’s breath for alcohol. The smelling of the driver’s breath is no less part of an investigative “plan” at the roadside, or the accident scene, than it was when Detective McDonald smelled the appellant’s breath in the emergency room.

[49] Nor was the conduct of Detective McDonald and his partner qualitatively different from the conduct of police officers who make other observations using their eyes and ears, looking for indicia of alcohol consumption. The officer who positions herself to get a clear view of a driver’s face as she speaks with him at the roadside so she can look for “watery” eyes, or the officer who talks to the driver to see if his responses reveal “slurred” speech, is doing exactly what Detective McDonald and his partner did when they leaned over and smelled the appellant’s breath. The officers are using their own senses to investigate a potential drinking and driving offence.

[50] The second distinction relied on by the trial judge was the absence of any consent by the appellant to Detective McDonald smelling his breath. The presence or absence of the driver’s consent to having his breath smelled by the police is irrelevant at the roadside, at the scene of an accident, and in the hospital. In none of those situations does the Crown rely on the consent of the driver to justify the smelling of the driver’s breath. Instead, the Crown argues the driver had no reasonable expectation of privacy in his exhaled breath or the information the officer could gather from smelling that breath. I agree with the Crown’s submission.

[51] The third factual distinction relied on by the trial judge arises out of the appellant’s circumstances when Detective McDonald and his partner smelled the appellant’s breath. The appellant was in the emergency unit of the hospital receiving medical care for significant injuries. It was essential that the appellant be able to converse with those providing medical care in a full and frank manner. Those treating the appellant were legally required to hold in confidence any information imparted to them by the appellant for the purpose of giving or receiving medical care. That legal duty, described in the case law as a fiduciary duty, is supportive of, although not necessarily coextensive with, a patient’s reasonable expectation that information provided by him to medical personnel in the course of their assessment and treatment will be kept private and, in particular, not shared with the state, absent the patient’s consent, or some statutory provision permitting or requiring disclosure: see McInerney v. MacDonald, [1992] 2 S.C.R. 138, at pp. 148-150; Dyment, at pp. 432-435; Dersch, at pp. 777-778; G. Robertson, Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed., (Toronto: Thomson Reuters, 2017), at pp. 18-21. Any attempt by the Crown to lead evidence of material or information that is potentially subject to the doctor’s duty of confidentiality must raise s. 8 “red flags”.

[52] However, not everything done, said, or observed in a hospital emergency room is wrapped in a cone of constitutionally protected privacy. Some information, even if provided to medical personnel, will have nothing to do with the patient’s medical care or treatment. Some information has also been characterized as “medically neutral” and not protected by any reasonable expectation of privacy on the patient’s part: see Dersch, at p. 778; R. v. Spidell, 1996 NSCA 162, 107 C.C.C. (3d) 348, at paras. 28, 45, leave to appeal refused, [1996] S.C.C.A. No. 334. For example, this court has held that information provided to the police by hospital personnel that blood samples had been taken from a patient for medical purposes, was “medically neutral” information and not subject to a reasonable expectation of privacy on the part of the patient: R. v. Day, at para. 4, leave to appeal refused, [1999] S.C.C.A. No. 293.

[53] With respect, counsel for the appellant overstate the appellant’s reasonable expectation of privacy by describing it as applicable to all “treatment room communications”. No doubt, many communications in the treatment room will involve the patient’s ongoing medical treatment and care and will fall within the reasonable expectation of privacy. However, the subject matter and purpose of the communication, not the place of the communication, or the identity of the communicants, are key considerations: see S.S., at paras. 40-41; Dyment, at pp. 432-435; Dersch, at pp. 777-778.

[54] Counsel also wrongly equate the nature of the reasonable expectation of privacy which attaches to some medical communications, with the reasonable expectation of privacy that attaches to data in electronic devices. In those cases, the reasonable expectation of privacy relates to the entirety of the data in the device and arises out of the individual’s right to control that data: R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at paras. 30-32.

[55] Unlike the privacy claim advanced in respect of data in a personal computer, the appellant’s reasonable expectation of privacy extends only to certain communications made for the purpose of giving and receiving medical care. There is no blanket expectation of privacy in respect of all activities that occur in a hospital emergency room, or all communications that pass between medical personnel and a patient. For example, if a patient in the emergency room tells his doctor that he will refuse any demand by the police to perform a breathalyzer test, because he was drinking before the accident, that patient has no reasonable expectation of privacy in the communication with his doctor, merely because it was made to a doctor in an emergency room. That communication, even assuming it involves sufficiently personal information, was clearly not made for the purpose of obtaining medical advice or treatment.

[56] I see no possibility that by sniffing the appellant’s breath it could be said that Detective McDonald and his partner interfered with the appellant’s reasonable expectation of privacy with respect to personal information relating to the appellant’s medical treatment. Detective McDonald was careful to ensure that there was no medical reason preventing him from interacting with the appellant before he engaged with the appellant and made the relevant observation. The officers made no attempt to co-opt medical personnel to the investigation, or obtain information from the medical personnel. On the facts of this case, the smelling of the appellant’s breath could not possibly reveal anything relevant to the appellant’s medical condition or treatment. There is no material difference between what Detective McDonald and his partner did, and the actions of a police officer who smells the breath of a passed-out driver in the backseat of the police vehicle.

[57] Counsel for the appellant attempt to connect the smelling of the appellant’s breath with his need for medical treatment by submitting that it was the appellant’s alcohol consumption that led him to require medical treatment. The reason a person is receiving medical treatment will be a consideration when deciding whether a particular communication was related to the giving or receiving of medical treatment or advice. I do not accept, however, that the appellant’s alcohol consumption is what caused him to require medical treatment. He required medical treatment because of the injuries he suffered in a serious car accident.

[58] I am satisfied there are no material factual distinctions between the s. 8 claim advanced by the appellant and claims that have been unsuccessfully advanced in the many cases where the police have smelled the driver’s breath at the roadside, scene of an accident, or in the ambulance on the way to the hospital. Those cases dictate the result in this case. However, as there are factual differences which others may consider significant, I will address the appellant’s submissions on a first principles analysis and on the assumption that the previously decided cases are not determinative.

(iii) The applicable s. 8 principles

[59] Section 8 of the Charter protects a claimant’s reasonable expectation of privacy against unreasonable state intrusions: Tessling, at para. 18. State conduct will amount to a search or seizure under s. 8 if that conduct infringes on the claimant’s reasonable expectation of privacy in the subject matter of the search or seizure: Dyment, at pp. 434-435; Spencer, at paras. 16-17; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 39; El-Azrak, at paras. 27-29; R. v. Lambert, 2023 ONCA 689, at para. 70.

[60] Privacy interests may relate to a place, a person’s body, information, or any combination of the three: Tessling, at paras. 22-23; El-Azrak, at para. 30. Insofar as the smelling of the appellant’s breath is concerned, the appellant claims an infringement of his personal privacy interests and his privacy interest in the information obtained by the officers as a result of smelling his breath.

[61] The determination of whether a claimant has a reasonable expectation of privacy involves a factual and a normative inquiry. The factual inquiry looks to the “totality of the circumstances”, including but not limited to the subject matter of the search, the claimant’s interest in the subject matter of the search, and the claimant’s subjective expectation of privacy, if any, in respect of the subject matter: Edwards, at paras. 31, 45; El-Azrak, at paras. 31-32.

[62] The normative inquiry required by s. 8 is reflective of fundamental societal values. The value placed on an individual’s right to be left alone by the state, absent state justification for any intrusion, lies at the heart of the normative inquiry. Privacy is essential to an individual’s freedom, security and personal dignity, as well as to the maintenance of a dynamic, open and healthy democracy: Reeves, at para. 28; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at para. 55; R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 59. As described by Professor H. Stewart in “Normative Foundations for Reasonable Expectations of Privacy” (2011) 54 S.C.L.R. (2d) 335, at p. 342:

Put another way, the ultimate normative question is whether, in light of the impact of an investigative technique on privacy interests, it is right that the state should be able to use that technique without any legal authorization or judicial supervision. Does our conception of the proper relationship between the investigative branches of the state and the individual permit this technique without specific legal authorization?

[63] The normative nature of the determination of whether a reasonable expectation of privacy exists understandably focuses on the interests of the individual fostered by protection against unwarranted state intrusions into privacy. That focus is not, however, exclusive. Broader societal concerns, particularly public safety and security, must be factored into the reasonable expectation of privacy calculus: R. v. Chow, 2022 ONCA 555, 163 O.R. (3d) 241, at para. 34; Orlandis-Habsburgo, at paras. 41-47; Goodwin, at paras. 55, 63; Mills, at paras. 59-60. The need to consider those broader societal concerns when setting the boundaries of s. 8 has been recognized since the seminal decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-160:

The guarantee of security from unreasonable search or seizure only protects a reasonable expectation … an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interests in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original.]

[64] On the facts of this case, public safety concerns are central. The operation of motor vehicles on public streets is a highly regulated and inherently dangerous activity. Because of the nature of the activity, the community expects and accepts significant limitations on individual privacy. The dangers presented to the community increase exponentially when drivers choose to drink and drive. The community as a whole has a vital interest in identifying persons who are drinking and driving and removing them from the highways.

[65] The extended powers given to the police under federal and provincial legislation to require drivers to provide certain information, and participate in certain roadside investigative procedures, speaks to the legitimacy and importance of public safety concerns. Those societal concerns must also be taken into account when settling upon the proper relationship between state interests in effective law enforcement, and the individual’s interest in being left alone by the state: see e.g. Criminal Code, R.S.C. 1985, c. C-46, ss. 320.27, 320.28; Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48(1).

[66] The reasonable expectation of privacy constitutionally protected by s. 8 of the Charter is intended to reflect and reinforce sometimes competing societal values. As Associate Chief Justice Fairburn eloquently said in El-Azrak, at para. 27:

Section 8 of the Charter does not exist to protect that which people want to keep private, solely because they want to keep it private. Nor does it exist to hide things that are incriminating, solely because they are incriminating. Rather, s. 8 exists for one purpose and one purpose only: to extend constitutional protection against unreasonable state intrusions to those individuals who have a reasonable expectation of privacy over the subject matter of a search. [Emphasis added; citations omitted]

(iv) Did the police violate the appellant’s personal privacy?

[67] As set out above, the appellant argues, that by smelling his breath, the officers infringed upon the appellant’s personal and informational privacy interests protected by s. 8. I will first address the personal privacy claim.

[68] In support of the personal privacy claim, the appellant describes the smelling of his breath as “the search of his mouth”, and equates the smelling of his breath with the capture and analysis of a driver’s breath by the administration of a breathalyzer or a roadside screening test. The use of either device involves a search and seizure for the purposes of s. 8: Goodwin, at para. 51. Counsel further submits that the officers invaded the appellant’s personal privacy by placing their noses in “the intimate area”, two inches above the appellant’s face. Counsel does not attempt to define the exact metes and bounds of the “intimate area” around a person’s mouth, but submits that it reaches at least two inches from the appellant’s mouth.

[69] I cannot agree with counsel’s submissions. Nothing the officers did interfered with, or intruded upon, the appellant’s bodily integrity. Smelling a person’s breath, even from two inches away, is neither invasive, nor an intrusion into “an intimate area”.

[70] Unlike when using a breathalyzer, or roadside screening device, the police did not take anything from the appellant’s body and did not co-opt the appellant into assisting the police in making or gathering evidence. The appellant did what all people are always doing. He breathed air in and he exhaled air out.

[71] The police, using nothing more than their own olfactory senses, smelled the appellant’s exhaled breath. There is no difference between this conduct and the other observations made by the police with their eyes or their ears, when investigating the possibility that someone has been drinking and driving. If a police officer leaning into a car window to smell a driver’s breath while speaking to him at the roadside does not engage s. 8, I do not see how doing the exact thing in the emergency room does. Surely, the application of s. 8 does not depend on exactly how many inches the officer’s nose was from the driver’s mouth.

[72] In concluding that the smelling of the appellant’s breath engaged s. 8, the trial judge relied on R. v. Evans, [1996] 1 S.C.R. 8. Evans is a very different case. In Evans, the police entered the appellant’s property, intending to knock on his door and conduct a “sniff search” for marihuana. The court held that the police had no authority to go on the occupant’s property, for the purposes of conducting a criminal investigation and securing evidence. The police were trespassers when they approached the occupier’s door and knocked. By infringing the occupier’s well-recognized right to privacy in his residence, the police were in breach of s. 8 of the Charter. The breach extended to the information gathered by the police when they took advantage of their unlawful presence in the residence to smell for marihuana: see also R. v. Atkinson, 2012 ONCA 380, 110 O.R. (3d) 721, at para. 73.

[73] In this case, the police were not trespassers when they entered the emergency room and approached the appellant with the implicit permission of his doctor. Indeed, the police were under an obligation to try and speak with the appellant, assuming there were no medical reasons preventing them from doing so. Evans would be of assistance to the appellant if the court had held that the officers were lawfully at the front door speaking with the occupant, but still infringed the occupant’s s. 8 rights by smelling for marihuana.

[74] The trial judge also made reference to the “dog sniffing” cases: e.g. R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569. Those cases are also very different from this case. Because of their training, drug sniffing dogs are effectively allowing the police to look inside a package or luggage for a specific drug. Not surprisingly, courts have recognized that the contents of one’s packages and luggage are the subject of a reasonable expectation of privacy. Using a trained drug sniffing dog to smell a package is much more like using an x-ray machine to look inside a person’s body, than it is like a police officer smelling someone’s breath for alcohol.

[75] There was no intrusion upon the appellant’s personal privacy interest.

(v) Did the police violate the appellant’s informational privacy interest?

[76] By smelling the appellant’s breath, the police gained direct information – the smell – from which other information about what the appellant may have had to drink in the recent past might be inferred. The police wanted to find out whether the appellant had been drinking alcohol prior to the accident. For the purposes of s. 8, the operative question becomes whether the appellant had a reasonable expectation of privacy in respect of the information being sought by the police, that is, whether he had consumed alcohol prior to the accident: see Marakah, at para. 15; Reeves, at para. 31.

[77] Information pertaining to alcohol consumption attracts only a “diminished” or “minimal” expectation of privacy when that information is extracted from a driver’s body using a roadside screening device or a breathalyzer: R. v. Stillman, [1997] 1 S.C.R. 607, at para. 90; Goodwin, at para. 51; Grant, at para. 111. In my view, even that minimal expectation of privacy disappears when the information concerning the driver’s potential alcohol consumption comes exclusively from the police officer’s olfactory observations of the air exhaled by the driver.

[78] A number of considerations lead me to that conclusion. First, the information was available to the police when they were in a place where they were lawfully entitled to be. Second, the police were using only their observational powers. Third, the information gained by the police officers revealed very little about the appellant. The information was not definitive, in that it could not tell the officers that the appellant had been drinking prior to the accident, only that he may have been drinking. That information did not indicate when the appellant consumed alcohol, or how much he consumed. Standing alone, the information gained by smelling the appellant’s breath could not tell the police whether the driver was impaired at the time of the accident, or whether he had committed any other criminal offence. Fourth, the consumption of alcohol is neither an intimate detail of one’s life, nor an inherently private activity. Information gained by smelling the appellant’s breath revealed no intimate details about his personal life or any private activity he may have engaged in prior to the accident.

[79] Counsel for the appellant argue that because the appellant had been driving, the information that he may have consumed alcohol was incriminatory, and therefore, private. Counsel maintain that the reasonable expectation of privacy protected by s. 8 includes the right to make an informed decision as to whether to give potentially incriminatory evidence to the police. Counsel submit that because of his condition, the appellant could not make that decision. Counsel rely on S.S., at para. 49.

[80] This submission confuses the right to silence, guaranteed by s. 7 of the Charter, and the right to privacy protected by s. 8. A detained person has the right under s. 7 to make an informed decision as to whether to provide information to the police: R. v. Hebert, [1990] 2 S.C.R. 151, at p. 175; R. v. LaFrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 97. That right is contingent upon the individual being detained by the police. As I will explain below, the appellant was not detained by the police in the emergency treatment room. The appellant’s attempt to infuse the privacy interest protected by s. 8 with principles underlying the right to silence is an attempt “to hide things that are incriminating, solely because they are incriminating”: El-Azrak, at para. 27.

[81] The nature of the activity giving rise to the police presence at the appellant’s bedside is also relevant to whether the appellant had a reasonable expectation of privacy in any information obtained by the police. The police were investigating a fatal car crash on a public thoroughfare. Canadian society accepts that the very real public safety concerns engaged during the investigation of serious car accidents must, of necessity, modify individual expectations of privacy in respect of information relevant to the accident under investigation.

[82] To summarize, having regard to the manner in which the information was acquired by the police, the nature of the information, and society’s strong interest in protecting the community from dangerous conduct on public highways, the appellant had no reasonable expectation of privacy in the information that he may have been drinking before the accident.

[83] As I would hold that the smelling of the appellant’s breath by Detective McDonald and his partner did not breach the appellant’s s. 8 rights, it follows that their observations were properly included in the ITOs and that the warrant and production orders were properly issued. The BAC results were properly admitted, unless the appellant can make out some or all of the other alleged Charter violations, and convince this court that those violations necessitate the exclusion of the BAC results from evidence under s. 24(2) of the Charter.

B. Was the appellant detained by the police when Detective McDonald questioned him in the emergency room?

[84] The trial judge found that the appellant was unable to leave the emergency room because of his medical condition and the injuries he had suffered. He was not being detained in the emergency room by the police. Consequently, for constitutional purposes, he was not detained and the requirements of s. 10(b) with respect to a detainee’s right to counsel were not triggered. I agree with the trial judge’s conclusions.

[85] The appellant submits in this court, as he did at trial, that the appellant was psychologically detained by the police while in the emergency room at the hospital. Psychological detention is established if the appellant demonstrates that the police conduct would have caused a reasonable person, in the circumstances the appellant was in, to conclude that his liberty interest was sufficiently compromised, such that he was under the control and direction of the police and unable to come and go as he wished: Grant, at paras. 31-32; R. v. Corner, 2023 ONCA 509, 428 C.C.C. (3d) 191, at para. 80.

[86] Nothing said or done by Detective McDonald when he spoke with the appellant in the emergency room would have suggested to a reasonable person that he was under the control and direction of Detective McDonald. The police had nothing to do with the appellant being placed in the emergency room and had made no effort to control or direct the appellant’s movements while he was in the emergency room. The police did not restrict access to the appellant while he was in the emergency room, not only by medical personnel, but by non-medical personnel, including family members. Detective McDonald acknowledged that the medical personnel were in charge of access to the appellant. He asked for the doctor’s permission before speaking to the appellant.

[87] During the brief interview, Detective McDonald repeatedly told the appellant he was under no obligation to speak with Detective McDonald. Perhaps most significantly, Detective McDonald immediately ended the interview when the appellant said he was unable to carry on. That conduct would hardly suggest the police had taken control of the appellant.

[88] The “realistic appraisal” of the circumstances required by Grant, at para. 32, tells me the appellant was in the emergency room because he was in need of medical care and he was under the control and direction of medical personnel. He was not detained by the police. It follows that the rights to counsel in s. 10(b) were not in play.

C. Did Detective McDonald breach the appellant’s s. 8 rights by questioning him in the emergency room?

[89] The appellant submits that he had a reasonable expectation of privacy in respect of the information he provided to the police in answer to the questions put to him by Detective McDonald at his bedside. He submits that the reasonable expectation of privacy arises because he “felt compelled to provide those answers”.

[90] This argument was not made at trial. This court will consider legal arguments raised for the first time on appeal only “in exceptional circumstances”: R. v. Zacharias, 2023 SCC 30, at para. 23; R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40, leave to appeal refused, [2016] S.C.C.A. No. 432. I see no “exceptional circumstances” here. Nor do I see any merit in the argument.

[91] I am not aware of any authority which supports the proposition that if an individual feels compelled to answer a question put by the police, that questioning infringes the individual’s reasonable expectation of privacy. The two authorities referred to by the appellant do not support that proposition. In R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, the accused, a passenger in a motor vehicle, was detained by the police when they unlawfully demanded certain information from him which would allow the police to access information about the accused/passenger on CPIC. Unlike the accused in Harris, the appellant was not detained, and no unlawful demand was directed at him. LaChappelle, the other case relied on by the appellant, involved a police officer overhearing communications about a driver’s medical condition between the driver and medical personnel in an ambulance.

[92] Not only is the proffered legal foundation for the argument unsound, the argument is premised on findings of fact that were not made at trial, presumably because they were not litigated. The appellant’s argument assumes the appellant felt compelled to answer Detective McDonald’s questions. There is no such finding. The issue did not come up.

[93] Finally, and perhaps most importantly, the determination of this issue could not possibly assist in the resolution of this appeal. The Crown made no attempt either on the voir dire to determine the admissibility of the BAC results, or at trial, to tender any statement made by the appellant to Detective McDonald. The appellant’s reference to “having a beer” was never included in the ITO and was not the subject of any evidence at trial. Even if the questioning of the appellant could somehow be viewed as a breach of s. 8, there is no possibility that this “breach” could have had any impact on the s. 24(2) analysis as applied to the BAC results.

D. The Other Alleged S. 8 Breaches

[94] The appellant submits that Constable Andrews breached the appellant’s right to privacy when he saw the appellant nod affirmatively after the doctor asked him if he had been drinking. Constable Andrews observed the head nod very shortly after the appellant arrived in the emergency room. It is a fair inference that the doctor posed the question in the context of his assessment of the appellant’s medical condition.

[95] The appellant also submits that Detective McDonald breached the appellant’s privacy rights when the appellant’s doctor volunteered to Detective McDonald that the appellant had been drinking. This comment was made when Detective McDonald asked the doctor if it was medically appropriate for Detective McDonald to try and speak with the appellant.

[96] The trial judge rejected both arguments. She found that neither Constable Andrews, nor Detective McDonald were engaged in a search or seizure when they acquired the information. The trial judge further held that the information was not confidential, personal, or medical, and that the appellant had no reasonable expectation of privacy in the information.

[97] The appellant’s arguments raise two issues:

• Did the appellant have a reasonable expectation of privacy in the information obtained by the police?
• Did the conduct of the police amount to a search or seizure?

[98] State conduct which, in the totality of the circumstances, infringes upon an individual’s reasonable expectation of privacy, will be treated as a search and/or seizure for the purposes of s. 8: Orlandis-Habsburgo, at para. 39. To establish a s. 8 breach, the appellant had to show, that in the totality of the circumstances, the actions of Constable Andrews and/or Detective McDonald intruded upon his reasonable expectation of privacy in the information acquired by the police officers.

[99] The arguments made in support of this ground of appeal raise difficult issues. Beginning with the “head nod”, I cannot agree with the trial judge that Constable Andrews merely made observations of the appellant when he noted the head nod. Constable Andrews overheard a conversation between the appellant and his doctor while the appellant was receiving medical care. The fact that the appellant communicated through gesture rather than orally is irrelevant.

[100] While the record is not entirely clear, it is fair to infer that the conversation overheard by Constable Andrews was part of the initial emergency room medical assessment of the appellant and that the doctor’s query about drinking was made in the context of gathering information relevant to the appellant’s treatment. The information would appear to fall squarely within the ambit of the doctor’s duty of confidentiality. I also have difficulty with the suggestion that the appellant would not have a reasonable expectation of privacy in respect of information provided to his doctor for the purpose of obtaining medical assistance. If the appellant had a reasonable expectation of privacy in respect of his communications with the doctor, Constable Andrews’ overhearing of the conversation constituted a seizure of that conversation: S.S., at para. 30. For the reasons set out above, I have difficulty with the Crown’s position that Constable Andrews did not seize information that passed between the appellant and his doctor.

[101] I have equal difficulty with the appellant’s argument that Detective McDonald did seize the information provided to Detective McDonald by the doctor. When Detective McDonald spoke with the doctor, he was not seeking medical information. He did not take possession of anything from the doctor. Detective McDonald was simply asking whether there was any medical reason he should not try and speak with the appellant, a witness to a very serious accident. This was a proper, indeed necessary question. The doctor volunteered information about the appellant, that the appellant had either given to him, or the doctor had discerned from his examination of the appellant. Detective McDonald played no role in eliciting the information from the doctor and could not reasonably have anticipated that the doctor would answer his question by reference to the appellant’s consumption of alcohol.

[102] Substantial authority supports the Crown’s position that Detective McDonald did not seize the information volunteered to him by the doctor. Two provincial appellate courts have held that in circumstances like those in which Detective McDonald received the information from the doctor, there was no seizure of that information under s. 8 of the Charter, despite the apparent breach of the doctor’s duty of confidentiality to the patient: Spidell, at paras. 39-43; R. v. Johal, 2015 BCCA 246, 324 C.C.C. (3d) 54, at paras. 52-55. In Dyment, at pp. 434-435, LaForest J. distinguished between cases in which medical personnel supply material to the police, e.g. blood samples, and cases in which doctors give information to the police. The former cases undoubtedly engage s. 8, however, cases in which only unsolicited information is passed to the police, may not engage s. 8.

[103] This court drew a similar distinction in Lambert, at paras. 48-61. A third party turned a computer over to the police which was jointly owned by the third party and the eventual accused. This court held that the accused maintained a reasonable expectation of privacy in the contents of the computer after it was turned over to the police. However, if the third party had instead simply told the police what was in the computer, the accused would have no reasonable expectation of privacy in the information relayed to the police by the third party. Paciocco J.A. said, at para. 58:

[I]ndividuals do not have a reasonable expectation of privacy in the knowledge that others have [citation omitted]. Individuals with relevant information about criminal conduct are free to communicate this information to the police, without s. 8 being engaged.

[104] Lambert did not involve a person, who, like a doctor, was under a legal obligation to hold certain information in confidence. That obligation may well colour the s. 8 analysis: see Mills, at para. 25. However, in Spidell and Johal, the appellate courts did not regard a breach of the doctor’s duty of confidentiality as determinative of whether the patient had a reasonable expectation of privacy in the information revealed to the police.

[105] The difficult issues outlined above do not have to be decided in this case. Whatever the outcome of the s. 8 analysis, the appellant can succeed on this ground of appeal only if he can convince the court that the s. 8 breaches involving Constable Andrews and/or Detective McDonald, assuming they are established, require the exclusion of the BAC results from evidence under s. 24(2) of the Charter. The appellant cannot do so.

[106] As explained in R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at para. 94, the exclusionary rule in s. 24(2) has two elements. The first, the threshold requirement, asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right. If the threshold requirement is satisfied, the trial judge goes on to consider whether, in all the circumstances, admitting the evidence would bring the administration of justice into disrepute.

[107] At the threshold requirement stage, the court looks for some nexus or connection between the Charter breach and the evidence sought to be excluded. In R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38, Moldaver J. said:

Whether evidence was “obtained in a manner” that infringed an accused’s right under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent statement may be temporal, contextual, causal, or a combination of the three. A “remote” or “tenuous” connection between the breach and the impugned evidence will not suffice. [Citation omitted].

[108] As I have concluded that the warrant and production orders were properly granted, the s. 24(2) analysis proceeds on the basis that the BAC results were obtained pursuant to valid court orders. In obtaining those orders, the police did not rely on Constable Andrews’ observation of the appellant’s “head nod”, or the statement made by the doctor to Detective McDonald. Nor is there anything in the ITO that can be said to have even an indirect connection to Constable Andrews’ observation, or the doctor’s statement to Detective McDonald.

[109] The only connection I can find between the BAC results and the alleged breaches of s. 8 by Constable Andrews and Detective McDonald is that both events could be said to have occurred in the course of the same investigation. Were that enough to establish the required connection, any evidence obtained at any time in the course of an investigation would be held to be obtained by any breach of the Charter which happened to have occurred at any time during the same investigation. That open-ended interpretation of the threshold requirement in s. 24(2) would inevitably lead to the exclusion of evidence where the connection between the Charter breach and that evidence could only be described as “remote” or “tenuous”: Mack, at para. 38.

[110] The police application for the warrant and production order based entirely on information other than Constable Andrews’ observation and the doctor’s statement to Detective McDonald amounted to a “fresh start” for the purposes of s. 24(2): Beaver, at paras. 97-98, 101-102. The BAC results were not “obtained in a manner” that breached the Charter and were beyond the reach of the exclusionary powers in that provision. [2]

E. Conclusion

[111] I would dismiss the appeal.

Released: “January 31, 2024 DD”

“Doherty J.A.”

“I agree. P. Lauwers J.A.”

“I agree. B. Zarnett J.A.”

[1] “Personal health information” is a defined term in the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, ss. 2, 4 (“PHIPA”). The Act prohibits disclosure of “personal health information” by health information custodians, except with consent, or where permitted under the Act: PHIPA, s. 29, ss. 38-50. Neither party suggests that the provisions in PHIPA are determinative of any aspect of the s. 8 claim.

[2] The Crown did lead evidence at the trial of the “head nod” observed by Constable Andrews. The trial judge made reference to that evidence in her summary of the evidence at trial. She made no reference to that evidence in the part of her reasons in which she outlined the basis for her verdicts. I do not understand the appellant to suggest reversible error based on the admission of the “head nod” at trial. His arguments focused on the admissibility of the BAC results.