Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Surenanthan Tharumakulasingam

Before: Justice D. Oleskiw

Reasons for Ruling on Garofoli Application released on: July 28, 2014

Counsel:

• Ms. S. Marple — counsel for the Crown
• Mr. A. Balachandran — Counsel for the Applicant Surenanthan Tharumakulasingam

OLESKIW, J.:

Overview

[1] The Applicant is charged with Impaired Driving and Over 80 on October 19, 2012. He applies to exclude evidence from blood samples obtained by way of a search warrant on the basis that his section 8 Charter right to be secure against unreasonable search and seizure was violated. It is submitted that the "Information to Obtain" ("ITO") tendered in support of the issuance of the warrant is legally deficient and that, after excision, reasonable grounds did not exist upon which the justice of the peace could, acting judicially, issue the warrant.

[2] On March 5, 2014 I dismissed the application and indicated that my reasons would follow. These are my reasons.

Overview of Facts

[3] Shortly before 4:00 a.m. on October 19, 2012 the police received a report of a single vehicle roll-over crash at Albion Road and Islington Avenue. The police arrived to find the Applicant trapped in the driver's seat of his extremely damaged vehicle. He was obviously injured. After emergency workers got him out of the vehicle, he was transported to hospital.

[4] The arresting officer believed he had grounds to arrest the Applicant for impaired operation based on the circumstances of the collision and his partner's information that the Applicant admitted that he had been drinking that night. Accordingly, the accused was advised of the reasons for his arrest and his rights to counsel in the ambulance on the way to the hospital. During this ambulance ride, but after being advised of his arrest, the arresting officer also smelled alcohol on the accused.

[5] Upon arrival in the trauma unit at the hospital, blood samples were taken by medical staff for medical purposes. The police observed while the samples were taken, but did not interfere with the Applicant's medical treatment. The police left the hospital after they were advised that the Applicant had a broken pelvis and required surgery that would keep him in hospital for around seven days.

[6] The challenged search warrant authorized the police to seize medical records, blood and blood serum taken from the Applicant at the Sunnybrook Health Sciences Centre at 2075 Bayview Avenue, Toronto, Ontario between October 29 and November 1, 2012 between the hours of 8:00 to 11:59 hours.

[7] On October 29, 2012, pursuant to the warrant, Detective Stewart received samples of the Applicant's blood that had been taken by medical staff on October 19, 2012. He took the samples directly to the Centre of Forensic Sciences the same day for analysis. The Applicant seeks to have the results of that analysis excluded from evidence.

[8] The Applicant asserts, in essence, that the seizure of his blood from Sunnybrook Hospital violated his Charter protected right to privacy because the warrant authorizing that search was defective. He points to three areas in which he alleges the affiant misstated and/or omitted information and says that the factual assertions in the ITO, once corrected and/or excised, fail to afford reasonable and probable grounds for the warrant's issue.

[9] The Crown consented to cross-examination of the affiant, Detective Stewart, as well as the sub-affiants, PC Ellis and PC Witt. The application was heard as a discrete voir dire.

The Law

Garofoli Test

[10] Search warrants are presumptively valid. To establish a Charter breach, the Applicant must demonstrate that there was no basis upon which the warrant could have been issued. The onus is on the Applicant to establish that the ITO is insufficient: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] S.C.J. No. 67 at para. 30.

[11] Judges reviewing material in support of prior judicial authorizations work within a narrow jurisdictional compass: R. v. Ebanks, 2009 ONCA 851, [2009] O.J. No. 5168 (C.A.) at para. 20. The basic test to be applied on review was summarized by Sopinka J. in Garofoli:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge: R. v. Garofoli, 60 C.C.C. (3d) 161 at p. 188 [emphasis added]

[12] Further, as the Supreme Court explained in Morelli:

The question is not whether the reviewing court itself would have issued the warrant but whether there was sufficient credible and reliable evidence to permit the justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place: R. v. Morelli, 2010 SCC 8 at para. 40 [emphasis added]

Amplification/Excision

[13] Where the reliability of the content of the ITO is challenged, the Court's task on review is to remove false or materially misleading information and then to ask whether there remains "at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued": R. v. Lao, 2013 ONCA 285 at para. 53; R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65 at para. 51.

[14] The Supreme Court of Canada addressed the meaning of "as amplified on the review" in R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65. In answer to the question, "which evidence should the reviewing judge consider in a situation where some of the original information was erroneous and there is an attempt to amplify it on review?" the Court stated, in part, at paras. 56-59:

56…[O]nly erroneous information 'needs to be excluded from consideration and that material, provided it is not part of a deliberate attempt to mislead the Justice of the Peace, may be amplified by evidence on review showing the true facts'…

57... Where the erroneous information results from a simple error and not from a deliberate attempt to mislead the authorizing judge, amplification may be in order. Nonetheless, there would be no need to seek to amplify the record if sufficient reliable material remains even after excising the erroneous material.

58 Thus, in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information.

59 When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations: [citation omitted]. As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: [citations omitted]. The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone's privacy interests [citation omitted], amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. [emphasis added]

[15] The Ontario Court of Appeal has emphasized that there is no authority for a reviewing judge to exclude correct information: R. v. Ebanks, 2009 ONCA 851 at para. 28; R. v. Lao, 2013 ONCA 285 at para. 61.

Application of the Legal Principles and Analysis

[16] The Applicant submits that the Affidavit of Detective Stewart contains erroneous information and material omissions that, together, invalidate the warrant. Specifically, the deficiencies alleged are:

(1) First, the affidavit sets out inaccurate information about the officers forming their grounds for arrest based on a "strong odour of an alcoholic beverage on the accused's breath". The Applicant says that this erroneous information, together with the omission of not mentioning a beer bottle or broken bottles in the vehicle after the collision is misleading. The Applicant says that the entire reference to the odour of alcohol should be excised. Further, he opposes amplification to clarify that PC Witt received an admission from the accused that he had been drinking the night of the collision.

(2) Second, the affidavit inaccurately states that the Applicant's inability to provide a breath sample was due to his injuries and his level of intoxication. This should be excised.

(3) Third, the Applicant asserts that Detective Stewart was misleading in relying on the civilian's statement that the Applicant was speeding and in not investigating the cause of the accident further.

I will deal with each of these issues after briefly summarizing the affiant's evidence about his process.

[17] Detective Stewart testified that he has been a police officer with the Toronto Police Service for 17 years. He has investigated between 10 to 50 impaired driving cases and had prepared approximately 20 blood warrants, although not all of those warrants were for impaired driving cases. He understood his duties, when preparing an ITO, to include full, fair and frank facts of the investigation and to include evidence that both supports and refutes the charge.

[18] In this case, he started preparing the ITO by first reviewing the notes of PC Ellis and PC Witt. He then spoke to both officers. He also viewed photographs that had been taken at the scene and the notes of the officers who relieved PC Ellis and PC Witt. Detective Stewart started drafting the ITO on October 20, 2012 and completed it on his next shift, five days later, on October 26, 2012.

(1) Odour of Alcohol

[19] Detective Stewart testified that when he spoke with PC Ellis about his observations with regard to the accused's signs of impairment, he told PC Ellis he did not see in his notes where he smelled alcohol. PC Ellis referred him to his note on the 208 Form that said "strong odour in DAS". Detective Stewart understood PC Ellis to mean that this referred to the odour of alcohol and asked PC Ellis if he could smell an odour of alcohol. PC Ellis answered, "Oh yeah". Detective Stewart testified that, although he did not ask PC Ellis specifically where the odour was coming from, he assumed that PC Ellis meant that the odour came from the Applicant's breath. Accordingly, Detective Stewart stated in the ITO that he believed that the Applicant had "a strong odour of an alcoholic beverage on his breath at the time of the collision."

[20] In fact, PC Ellis testified that his actual grounds for arrest were based on PC Witt advising him that the Applicant had admitted to her that he had been drinking that night (together with the nature of the collision and another admission to the ambulance attendant). While in the ambulance, and after PC Ellis advised the Applicant that he was under arrest for impaired operation and had made the breath demand, he noticed that there was a strong odour of alcohol coming from the Applicant. However, he did not know if the odour was coming from the Applicant's breath.

[21] PC Witt did not smell alcohol coming from the Applicant. However, she received his admission that he had consumed alcohol that night. She testified that she was at the Applicant's vehicle for approximately one minute before she left to interview the 911 caller and that, although she was approximately one metre away from the Applicant in the ambulance, she would not necessarily have smelled alcohol from him because of her location in giving the paramedics room to work on him.

[22] I find that Detective Stewart was not attempting to mislead, and indeed, made an error in good faith, when he stated in the ITO that the accused had the strong odour of alcohol on his breath. The reference to the odour coming from the Applicant's breath will be excised. However, the correct information that one of the arresting officers smelled the strong odour of alcohol will remain.

[23] I find that there is no significance to the omission of any reference to a beer bottle being seen in a photograph or that another officer noted "several broken Coors Light bottles". PC Ellis did not see the bottle at the scene and PC Witt gave no evidence about the issue. Detective Stewart testified that he assumed he was aware, from PC Roberts' notes, that there were broken bottles in the car prior to drafting the ITO and that the presence of beer bottles in the car is a relevant factor. However, the underlying field accident note of PC Roberts mentioned a beer bottle or bottles of Coors Light in the rear trunk of the car. Exhibit 1 appears to be a photograph of the inside of the trunk of the car. There is no evidence that the trunk of the car was opened into the interior of the vehicle or was accessible to the Applicant who was trapped in the driver's seat. The omission in the ITO is not misleading.

[24] Finally, Detective Stewart admitted in his evidence on the Garofoli voir dire that it was an oversight when he did not include PC Witt's specific reference to the Applicant's admitted drinking that night. He said when he was drafting, he was focused on the blood and its location.

[25] The ITO does state "From the observations and interaction with the male driver Surenanthan THARUMAKULASINGAM, officers formed the opinion that the driver was impaired by alcohol in the operation of a motor vehicle." The notes of PC Witt are clear that she wrote "I ask male 'have you been drinking alcohol tonight?' Male replies 'yes' and nods his head". Further the uncontradicted evidence of both PC Witt and PC Ellis is that PC Witt advised PC Ellis of the admission at 4:08 a.m. Finally, when Detective Stewart had a conversation with PC Witt after reviewing her notes, she advised Detective Stewart that the accused had admitted to drinking but she had no additional information about an odour of alcohol. Based on the totality of the information provided by Officers Witt and Ellis, Detective Stewart was satisfied that the officers had reasonable grounds for an impaired driving charge.

[26] Keeping in mind that the amplification process should not be used to circumvent the prior authorization requirement, I am of the view that information that the Applicant admitted to PC Witt that he had been drinking on the night of the collision should be considered on review. The specific omission was an oversight made by Detective Stewart: it was not deliberate. The admission was known to Detective Stewart at the time of drafting. The evidence of the admission itself was strong and uncontradicted.

(2) Applicant's Inability to Provide a Breath Sample

[27] The ITO references the fact that the officers had requested a breath technician to attend the emergency department of the first hospital so that breath samples could be taken from the Applicant. It notes that, at 5:28 a.m., a doctor advised the police officers that the Applicant "was too intoxicated to obtain breath samples from him" and that as a result of his injuries, the Applicant would be transported to Sunnybrook Hospital. The ITO further sets out at paragraph 18 that, at 8:00 a.m., medical staff advised the police officers that the Applicant had a broken pelvic bone and that he would remain at Sunnybrook for further examination and surgery. Due to his condition, the Applicant could not be given the option to provide breath samples due to his unresponsiveness and apparent level of intoxication. Finally, at page 10 the ITO states that the Applicant was transported to Sunnybrook hospital where it was determined that he was unable to provide samples of his breath due to the nature of his condition.

[28] Detective Stewart testified on the voir dire that he clearly understood that the Applicant was not able to provide a breath sample. Also, it was his understanding that the Applicant's level of intoxication was a factor in him not being able to give a sample. This is not in the notes of either officer. PC Witt's notes indicate that the Applicant must be transferred to Sunnybrook Hospital, is having trouble speaking and cannot provide a breath sample at this time. PC Witt's notes from Sunnybrook Hospital indicate that the Applicant had a broken pelvic bone and is admitted to hospital. Detective Stewart said that he had conversations regarding updates at the hospital but he did not keep notes of these updates. Detective Stewart did not agree with defence counsel that his statement at paragraph 18 was inaccurate.

[29] PC Witt testified that the information she received about the Applicant's inability to provide a breath sample was that the Applicant was having trouble speaking and his injuries were such that it was not appropriate or possible for him to give a breath sample. PC Witt said that the doctor said this, but she also made these observations herself. Further, when they got to Sunnybrook Hospital, the Applicant's level of communication was getting worse. At the hospital, she observed the Applicant to be severely injured and in great pain. She recalled telling Detective Stewart that it was impossible to get a breath sample due to the Applicant's inability to speak or comprehend what she was saying and that he was in a lot of pain. Further she told him the doctor said he was not suitable for a breath sample.

[30] I am prepared to accept that Detective Stewart may have misunderstood PC Witt and that he erroneously included references to the Applicant's inability to provide a breath sample to be due, in part, "to his level of intoxication". I do not, however, consider this to be a deliberate attempt to mislead anyone. The reference to "due to his level of intoxication" will be excised from the ITO. The references to the fact that the Applicant could not provide a breath sample due to the nature of his condition will not be excised.

(3) Duty to Investigate the Circumstances of the Collision

[31] I find that there is no merit whatsoever to the Applicant's argument that the police should have investigated the cause of the collision further before relying on the civilian witness's statement that he saw the Applicant's vehicle coming around the corner at a very high rate of speed or the nature of the collision in general. In particular, although the Applicant argues that the 'conditions' could have contributed to the collision, PC Witt testified that she did not recall the roads being wet and she believed it was not raining when the police arrived on scene. PC Ellis had noted that, at the beginning of his shift at 11:00 p.m., the roads were wet and it was cool and cloudy. That was five hours prior to the police arrival at the scene. The photographs of the scene show that the roads were mostly dry.

[32] The witness, Patrick Simmon's description that "I seen him come fast, like he was being chased by someone. He just couldn't hold the corner" did not require the police to investigate whether the Applicant, in fact, was being chased. The witness statement implies that the reference to "being chased" was being used as a descriptor of the speed with which the Applicant took the corner, especially when considered in conjunction with the witness's statement, "He was going about 100 km per hour. Definitely. There was no one else. I was just walking and saw it". Further, PC Witt was clear that when she and PC Ellis arrived on scene, there were no other witnesses around. There were no other vehicles in the area and no one had stopped. PC Witt observed a single vehicle collision by a lone driver with a vehicle that had sustained extreme damage; "wipe-out" damage from the roadway into the plaza parking lot where the car had come to a stop by a giant sign; and no other traffic. Businesses were closed. It was reasonable to infer that the Applicant's car travelled off of Albion Road, had rolled over, and struck signs and trees before it came to rest at the plaza sign in the parking lot.

[33] After considering all of the evidence called on the voir dire, I find nothing misleading or erroneous in Detective Stewart's use of civilian witness statements or description of the collision scene in the ITO.

Conclusion

[34] After excluding from my consideration the items I have found should be excised, I find that the ITO discloses reasonable and probable grounds upon which the Justice could issue the authorization. The excised ITO discloses the following information:

• there was an apparently unexplained single motor vehicle collision involving a high rate of speed in which the vehicle rolled over and suffered extensive damage;

• the Applicant was found trapped in the driver's seat;

• PC Ellis observed a strong odour of alcohol coming from the Applicant in the DAS shortly after the collision;

• The Applicant was unable to provide a breath sample due to his condition;

• The Applicant had his blood taken by medical staff at Sunnybrook Hospital and he remained there for treatment for his injuries.

[35] Further, I have found that the ITO is properly amplified by including PC Witt's evidence of the Applicant's admission that he drank alcohol. This adds to the grounds set out above.

[36] Accordingly, I find that there has been no breach of the Applicant's section 8 Charter rights. It is unnecessary for me to consider s. 24(2) of the Charter. The application is dismissed.

Released: July 28, 2014

Signed: "Justice D. Oleskiw"