ONTARIO COURT OF JUSTICE DATE: 2022/05/02

COURT FILE No.: 20-25221 & 20-36266

BETWEEN:

KURLAN CADET

— AND —

HER MAJESTY THE QUEEN

Before Justice B. Green

Heard on March 7, 2022

Reasons for Dismissing an Application to Exclude Evidence released on May 2nd, 2022

Counsel: Ms. N. Kelsey .......................................... counsel for the Applicant Mr. Cadet Mr. D. Parke .......................................................... counsel for the Respondent

Green J.:

A. Introduction

[1] Mr. Cadet is charged with two counts of operating a conveyance in contravention of section 320.14 of the Criminal Code causing bodily harm and two counts of dangerous operation of a conveyance causing bodily harm as a result of a serious collision that occurred on June 13th, 2020.

[2] The police responded to a call for assistance after a motor vehicle driven by Mr. Cadet collided with another motor vehicle occupied by a number of individuals. There was a young child in the back seat of Mr. Cadet’s vehicle. The police and paramedics were initially preoccupied with attending to the wounded people, including Mr. Cadet and his child. After bottles of alcohol and an empty box of alcohol were located in and around Mr. Cadet’s car, the police commenced an investigation into whether or not Mr. Cadet’s ability to operate a conveyance was impaired by alcohol to any degree prior to the crash.

[3] Mr. Cadet was immediately airlifted to a hospital for treatment due to various injuries that he sustained that day. The police gathered some information while he was at the hospital. They applied for a search warrant pursuant to section 487 of the Criminal Code to seize samples of Mr. Cadet’s blood which were taken by medical professionals during the course of his treatment. They also applied for a production order to seize his medical records from June 13th.

[4] Both the search warrant and production order were granted by a Justice of the Peace. Acting on the strength of these authorizations, the police seized a sample of Mr. Cadet’s blood and sent it to the Center of Forensic Sciences for analysis. Although the information to obtain the warrant specified that the police had reasonable grounds to believe that Mr. Cadet was operating a conveyance with an amount of “alcohol” in his system in excess of the legal limit, the investigating officer requested a “full” toxicological analysis of Mr. Cadet’s blood to “ascertain if he was impaired at the time of the collision”.

[5] An expert from the Center of Forensic Sciences analyzed Mr. Cadet’s blood. It was determined that Mr. Cadet had a negligible amount of alcohol in his system, but he tested positive for THC, the intoxicating chemical in marijuana, in excess of the legal amount.

[6] Counsel is seeking the exclusion of both the results of the analysis of Mr. Cadet’s blood and his medical records because:

• Based on a “facial review” of the contents of the information to obtain the warrant and the production order, the grounds provided to the Justice of the Peace were insufficient to meet the statutory prerequisites. As a result, both the warrant and the production order were invalid, and therefore the subsequent seizures resulted in a clear violation of Mr. Cadet’s section 8 Charter protected rights;
• Alternatively, or in addition to the invalidity of these authorizations, the manner of the subsequent search/seizure violated Mr. Cadet’s section 8 Charter protected rights. The information to obtain each of the orders only spoke to reasonable grounds to believe that Mr. Cadet was impaired by or operating a conveyance while under the influence of an amount of alcohol in excess of the legal limit. There was absolutely no evidence to support even a suspicion or belief that Mr. Cadet was impaired by a drug of any kind while operating his car. As a result, the officer’s choice to request a full toxicological screen of Mr. Cadet’s blood for any kind of intoxicants as opposed to simply testing it for the presence of alcohol as well as the request for all of his medical records from that date, instead of only those portions relating to alcohol consumption, were unreasonable searches and seizures; and
• Finally, the evidence ought to be excluded pursuant to a section 24(2) Charter analysis because it was a flagrant breach of Mr. Cadet’s constitutionally protected rights, his privacy interests were significantly negatively impacted, and the public has an interest in ensuring that the state does not intrude on such intimate and personal details as would be contained in a person’s hospital records and/or the contents of their blood absent reasonable grounds.

[7] The crown emphasized that, while the issuing justice may not have had an abundance of objective information to support the reasonable grounds for the officer’s subjective beliefs, my decision must not be guided by what I would have done if presented with these same facts. Rather, the scope of my review is narrowly focussed on whether the warrant “could” have been lawfully issued by the justice. Secondly, the warrant authorized the lawful seizure of the applicant’s blood and medical records without any express limitations with respect to what the police could do with the items once seized. Thirdly, based on a review of similar authorizing provisions in the sections of the Criminal Code related to driving offences, the police were entitled to request that the blood be analyzed for any intoxicant because they possessed reasonable grounds to believe that the applicant was driving a conveyance while under the influence of an intoxicant. The evidence obtained was rationally connected to the offence being investigated.

[8] Finally, the crown submitted that, even if there were any breaches of the Applicant’s Charter protected interests, the Applicant has not met his onus to justify the exclusion of the evidence. The officers acted in good faith throughout this investigation. They provided full, frank, and fair disclosure to a Justice of the Peace. They took the time to apply for and receive a judicial authorization before they seized anything. The police were acting pursuant to similar authority set out in the Criminal Code with respect to the manner of the search. The crown conceded that the Applicant’s privacy interests were impacted by these seizures. However, he emphasized that the public has an interest in this case proceeding to an adjudication on its merits particularly considering the seriousness of the charges. Accordingly, the admission of this evidence would not bring the administration of justice into disrepute.

[9] The law with respect to the Applicant’s first ground for seeking exclusion is well settled. I will briefly address the alleged section 8 breach with respect to the grounds for the authorizations. In contrast, there is only one reported decision with respect to counsel’s second argument about the manner of the search. The issue to be determined is whether the investigative steps that the police took after they obtained these authorizations exceeded what was reasonable in the circumstances. Most of my reasons will be focussed on this second inquiry.

B. The issuance of the warrant and production order:

[10] Counsel conceded that the police were full, frank, and fair in the information to obtain ( hereinafter referred to as the ITO ). Neither counsel nor the crown sought any excisions or amplifications of the information provided to the issuing justice. Rather, counsel asserted that there was insufficient information before the authorizing jurist to meet the statutory prerequisites for the issuance of the warrant and the production order. Accordingly, I have been asked to determine the “facial” validity of these orders.

[11] In R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 at para. 37 (Ont.C.A.), Justice Watt explained that:

A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19. The record examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.

[12] When reviewing the facial validity of an ITO, the law to guide my decision is straightforward. It was succinctly summarized by Justice Jamal ( as he then was ) in the Ontario Court of Appeal’s decision of R. v. McNeill, 2020 ONCA 313, [2020] O.J. No. 2282 at paras 32 to 34:

The standard of "reasonable grounds to believe" does not require proof on a balance of probabilities, but rather only a credibly-based probability: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Sadikov, at para. 81. The ITO must provide "reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. ... If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued": Sadikov, at para. 81; see also R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

In making this evaluation, the issuing justice considers the ITO as a whole, in a common sense, practical, non-technical way, and may draw reasonable inferences from its contents: Sadikov, at para. 82; Vu, at para. 16. The record on a facial challenge is limited to the ITO: Sadikov, at para. 37; R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.

A court later reviewing the issuance of a warrant does not substitute its opinion for that of the issuing justice. It instead asks whether "there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued": Sadikov, at para. 84; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54. This involves the reviewing court asking "whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search": Sadikov, at para. 84; Morelli, at para. 40.

[13] A judicial authorization granting a search warrant is presumptively valid. It is the Applicant’s onus to establish that his Charter rights were violated because of insufficient grounds to issue the warrant and the production order.

[14] My review is focussed entirely on the facial validity of the ITO for the warrant and the accompanying production order for the Applicant’s medical records. Counsel submitted that the “issuing Justice erred” because “no justice could have authorized the warrant” or the production order based on this ITO.

[15] The warrant to seize the Applicant’s blood was issued pursuant to section 487(1) of the Criminal Code which requires that:

Information for search warrant

487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

… may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it. [emphasis mine]

[16] The production order allowing the police to seize the Applicant’s medical records was issued pursuant to section 487.014 of the Criminal Code which requires that:

487.014 (1) Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe that

(a) an offence has been or will be committed under this or any other Act of Parliament; and

(b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence. [emphasis mine]

[17] The police presented the same Appendices and ITO as the basis for both of the orders that they sought from the learned Justice of the Peace. The police indicated in Appendix A, that they sought the seizure of the blood sample and hospital records, because they had reasonable grounds to believe that the items to be seized would afford evidence that Mr. Cadet did “within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood contrary to section” 320.14(1)(b) of the Criminal Code.

[18] The police sought judicial preauthorization for the purposes of seizing the blood and records from the hospital. The only grounds provided to the issuing justice supported an inference of alcohol in the Applicant’s system at the time of driving not any other kind of intoxicant. The warrant authorized the seizure of the blood for testing it for the presence of alcohol, but it did not specifically set limits on what the police could do in terms of testing the blood or reviewing the records once they were lawfully seized pursuant to the warrant and production order.

[19] In summary, the ITO provided the following grounds to support the belief of “impaired operation – blood alcohol concentration equal to or exceeding 80 milligrams”:

• On June 13th, 2020, at 7:55 p.m., police responded to a report of a two-motor vehicle collision on Brock Road near the Pickering Parkway.
• Once on scene, police noted both vehicles had “significant damage and deployed air bags”;
• The Applicant’s BMW coupe had “sustained significant front-end damage and had come to rest on the east curb of Brock Road facing East”;
• The Applicant was observed to be “lying across the front seats with his head out the passenger side window resting in the windowsill with his feet in the driver’s seat area”. He was not wearing a seat belt. The officer noted that he had a head laceration and broken wrist. He was “able to respond and was confused about where he was and how he got there”.
• A witness advised police that a small child had been in the back seat of the Applicant’s vehicle, but they were tending to his injuries. Mr. Cadet was taken from the scene by an “air ambulance” while his son was transported by ambulance to the hospital.
• The second vehicle, a Toyota 4-runner, was occupied by four people who were being cared for and they were also sent to the hospital. That vehicle had “sustained damage to the front wheel area and the front door of the passenger side”. Based on the placement of the damage of each vehicle, an obvious inference is that the Mr. Cadet’s BMW t-boned the passenger side of the Toyota.
• The police located a 330-millilitre bottle of Heineken beer on the passenger seat of the Applicant’s vehicle. They located a 750-millilitre bottle of Courvoisier (which is cognac) with only half the contents remaining from “behind the passenger seat”. There was an “empty cardboard Courvoisier box” “outside the vehicle near the right tire.
• Officer Roussel was tasked with investigating the “potential impairment” of the Applicant after the half full bottle of alcohol was located in his vehicle. He attended the hospital at 10:35 p.m. which was more that 2 and a half hours after the collision. Upon arrival at the hospital, the officer learned that Mr. Cadet had sustained a broken hip and a broken wrist. He was advised that Mr. Cadet’s blood had been drawn at 9:25 p.m. as part of his treatment which would have been considerably closer in time to the collision.
• The officer spoke with Mr. Cadet, and he was still “clearly confused about what had happened”.
• Hours after the collision, PC Roussel fairly and frankly disclosed that he was “unable to detect the odour of alcohol nor any obvious signs of impairment”. However, Mr. Cadet told PC Roussel that he had been “at a barbecue prior to the collision and admitted to consuming one beer at the barbecue several hours prior to driving”. PC Roussel inquired if Mr. Cadet consumed any cannabis and he advised he “had not consumed any”.
• Another officer, DC Bryson, conducted further investigation. DC Bryson confirmed that blood had been taken as part of Mr. Cadet’s medical treatment and it was still in the lab at the hospital.
• He also spoke with Mr. Cadet who told him that “he had been at a barbecue at Rotary Park in Pickering. He was dropping his son off to his mother and was northbound on Brock Rd. A white van suddenly cut across in front of him. He downshifted and braked and tried to avoid, but the collision occurred. He was confused for a while and came to in the hospital. He sustained a broken wrist, a broken hip, a fractured knee, a bruised lung, and some abrasions to his head. He admitted to having consumed one beer (Cold Shot) at the barbecue at Rotary Park in Ajax. He consumed no other recreational drugs at the barbecue.”

[20] The affiant swore that he had grounds to believe that the blood taken from Mr. Cadet was still in the laboratory at the hospital and a record of the medical treatment that Mr. Cadet received at the hospital on that date would be kept in the health records repository.

[21] It is evident that the Justice of the Peace carefully reviewed the ITO before authorizing the seizure of the blood and the production of the medical records. He initialled every page and underlined key words throughout the ITO including both inculpatory and exculpatory aspects of the various officers’ observations.

[22] The affiant indicated that he had reasonable grounds to believe that the items sought, the blood sample, would afford evidence “through expert and precise analysis of the exact blood alcohol concentration that his blood was at the time of the collision and thereby prove or disprove that Kurlan Cadet was operating a conveyance while impaired by alcohol”. [ emphasis mine]

[23] The hospital records were sought to afford evidence of “the chain of custody of the blood samples” and “to ensure any toxicological analysis conducted on the blood provides accurate and valid results”. In addition, the medical records were sought to afford evidence of the “toxicological analysis” of Mr. Cadet’s blood as part of his treatment and to “prove or disprove that Kurlan Cadet was operating a conveyance while he was impaired by alcohol”.

[24] The ITO reviewed by the authorizing jurist had information about an admission of the consumption of alcohol hours before the accident, bottles of alcohol recovered from the Applicant’s vehicle including one that was only half full, the inability of the Applicant to stop in time to avoid a collision with the other vehicle, even though he was cut off, and some expressed confusion.

[25] Whether or not I would have issued the warrant or production order based on this ITO is irrelevant, the test is whether it could have been issued. Similar to the authorizing jurist, my decision must not to be guided by my personal opinion. The issuing judicial officer did not have to agree with the officer’s subjective beliefs. Rather, the test applied by the Justice of the Peace was a consideration of whether the beliefs of the affiant were reasonable: R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.); R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.). A jurist must engage in a neutral, independent consideration of whether the ITO contains sufficient, weighable evidence to reasonably find that a credibly based probability exists with respect to all of the preconditions for issuance of the orders.

[26] Based on a review of the ITO as a whole and a consideration of the totality of the circumstances, I find that there was sufficient credible and reliable information upon which the issuing Justice could be satisfied that there were reasonable grounds to believe that the seizure of the Applicant’s blood and his medical records could afford evidence with respect to whether or not he was operating a conveyance while impaired to any degree by alcohol or under the influence of an amount of alcohol in excess of the legal limit. As a result, I find that Mr. Cadet’s section 8 Charter protected rights were not breached by the issuance of the authorizations to seize his blood and medical records.

C. The manner of the search:

i. The issues to be determined:

[27] I have found that the seizures of the blood samples and medical records were properly authorized by the Criminal Code, ss. 487 and 487.014. Those provisions are not challenged, and they are presumptively valid: R. v. Lloyd, 2016 SCC 13, [2016] S.C.J. No. 13 (S.C.C.). The next consideration is whether the manner in which the police executed the search and seizure was reasonable: R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.); Hunter v. Southam, [1984] 2 S.C.R. 145.

[28] At first blush, the Applicant’s submissions were quite persuasive. The argument is similar to one considered by the Court of Appeal in R. v. Jones, 2011 ONCA 632. The police lawfully seized Mr. Jones’ computer pursuant to a warrant to search it for evidence of fraud offences. While they were searching the computer, the police located child pornography. The Court of Appeal found at paras 23 and 24:

I have concluded that the trial judge was correct in holding that the warrant itself was valid for purposes of authorizing the search for evidence of fraud, but that it did not authorize a different search for evidence of child pornography other than that found in the data image files.

This is not because the warrant should be struck as "too broad", in the sense that it contained no limitations on the ability of the police to search the computer, and therefore improperly invaded the high expectation of privacy the respondent had in the contents of his computer, as the respondent argues. It is because the warrant itself is properly restricted in the circumstances. Although it contained no limitations on the types of files that could be examined, it was reasonably focused and limited in the types of evidence the police could seek, and that evidence did not include evidence of child pornography.

[29] In this case, the ITO only disclosed the potential of an alcohol related driving offence. The warrant and production order were issued on the basis of reasonable grounds to believe that offence had been committed. Moreover, the officer specified that he was seeking the seizure of the blood because subsequent testing “will show, through expert and precise analysis the exact blood alcohol concentration that was in his blood at the time of the collision”.

[30] Counsel emphasized that the officer did not set out in the ITO that he was seeking expert analysis for “any intoxicant”. That makes sense because there were no grounds to believe that Mr. Cadet’s ability to operate a conveyance was impacted by any intoxicant other than alcohol. The police did not suspect any drug related driving offence. They did not see any indicia of impairment by drugs, find or smell any drugs on Mr. Cadet or in or around his vehicle. In the ITO, the officer included Mr. Cadet’s denial that he consumed any drugs prior to the accident.

[31] Even though the ITO only addressed testing Mr. Cadet’s blood for the presence of alcohol, the police sought more information from the expert about any intoxicant and seized all his medical records from that day which contained far more personal information than merely the presence or absence of alcohol. Counsel urged me to consider that the police did not have any grounds to believe or even suspect, let alone reasonable ones, that searching Mr. Cadet’s blood or examining his medical records would afford evidence of the commission of any offence other than one relating to impairment by alcohol. Accordingly, the manner of the search was overly broad, exceeded the scope of the warrant and was patently unreasonable.

ii. General remarks:

[32] Neither counsel nor the crown addressed whether the plain view doctrine could have applied to the discovery of the THC in Mr. Cadet’s system. That is understandable considering the presence of drugs in Mr. Cadet’s blood was not inadvertently or unexpectedly discovered by the police as a result of the examination conducted by the expert. The officer specifically asked for a full toxicological analysis as opposed to a focussed analysis for the quantity of alcohol in Mr. Cadet’s blood: R. v. Jones, 2011 ONCA 632 at para 67.

[33] A more compelling argument could be made that the plain view doctrine may apply to the review of the medical records. During the course of the police legitimately reviewing the records to find evidence with respect to the continuity of the blood sample, the presence of alcohol and other evidence and “to ensure any toxicological analysis conducted on the blood provides accurate and valid results”, they would have unexpectedly discovered the presence of THC in Mr. Cadet’s blood.

[34] In R. v Stairs, 2020 ONCA 678, [2020] O.J. No. 4590 at para. 62, the Ontario Court of Appeal explained that:

Of course, the plain view doctrine is a seizure doctrine, not a search doctrine. As this court held in R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 56, there are four criteria to be applied in determining whether the doctrine is operative: (a) whether the police were lawfully positioned relative to where the item(s) were found; (b) whether the nature of the evidence was immediately apparent as constituting an offence; (c) whether it was discovered inadvertently; and (d) whether the item(s) were visible without any exploratory search.

[35] The police lawfully seized the medical records. The presence of drugs in Mr. Cadet’s test results would have been discovered inadvertently, without an exploratory search and it would have been immediately apparent to the officer that having an excessive amount of THC in a person’s blood while driving would constitute an offence.

[36] In addition, Section 489 of the Criminal Code provides guidance to the police with respect to the boundaries of their authority:

Seizure of things not specified

489 (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds

(c) will afford evidence in respect of an offence against this or any other Act of Parliament. [emphasis mine]

[37] Arguably, following the execution of a lawful production order, the police seizure of the additional information in the medical records with respect to the presence of THC would afford evidence of an offence. Therefore, it was authorized by law and a reasonable seizure.

[38] I did not invite further submissions from counsel on this issue because my judgement with respect to dismissing the application with respect to the exclusion of the medical records was primarily guided by other reasons eloquently set out by Justice Di Luca in the recent decision of R. v. Hayatibahar, [2022] ONSC 1281. Nevertheless, I make these comments as additional support for my finding that the seizure of all the information about Mr. Cadet’s treatment on that date was reasonable.

iii. Reviewing the context of the investigative steps:

[39] In R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 at paras 21 and 22, the Supreme Court explained that:

Section 8 of the Charter - which gives everyone the right to be free of unreasonable searches and seizures - seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement. In addition to the overriding requirement that a reasonable law must authorize the search, this balance is generally achieved in two main ways.

First, the police must obtain judicial authorization for the search before they conduct it, usually in the form of a search warrant. The prior authorization requirement ensures that, before a search is conducted, a judicial officer is satisfied that the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance the goals of law enforcement: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160. [page 670] Second, an authorized search must be conducted in a reasonable manner. This ensures that the search is no more intrusive than is reasonably necessary to achieve its objectives. In short, prior authorization prevents unjustified intrusions while the requirement that the search be conducted reasonably limits potential abuse of the authorization to search.

[40] An analysis of the reasonableness of police actions during or after the execution of an authorization requires a careful balancing of the individual interests of bodily integrity, dignity and privacy of the person against the societal interests in effective law enforcement and the furtherance of truth-seeking in the criminal process. This review does not take place in a vacuum devoid of context or consideration of competing interests. As a result, the reasonableness of the manner of the search or seizure is informed by the surrounding circumstances and the applicable law.

[41] It is essential to review the conduct of the police within the broader context of all the interests at play and to consider the nature and/or scope of the powers that the police were exercising, and the nature of the items searched or seized. A culmination of factors may tip the scales towards a finding, or not, of reasonableness. I must consider the context of the nature of the offence under investigation and the wording of the authorizing sections of the Criminal Code relied upon to obtain the warrant and production order that may also inform the manner of the search.

[42] The conduct of the police must be viewed through the lens of the nature of the offence that they were investigating in this case. Driving is a highly regulated privilege; it is not a right. The police possess extensive powers pursuant to the common law, the Criminal Code and provincial legislation to investigate driving related offences: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37 at para. 31 (S.C.C.).

[43] Drivers still enjoy the benefit of Charter protected interests in a general sense, but those rights and freedoms are circumscribed and subject to significantly more control than the ordinary citizen for the benefit of public protection. The Part of the Code devoted to driving related offences commences with a “Recognition and Declaration” statement:

320.12 It is recognized and declared that

(a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety;

(b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health, and safety of Canadians;

[44] There are mandated restrictions on a person’s freedom and liberty interests while exercising their privilege to drive which includes the requirement to observe sobriety because of the foreseeable risk of harm and loss of life to innocent members of our community. The protection of society from impaired drivers is a such an important objective, the police are imbued with powers that they would not have when investigating other offences. For example, the police are statutorily entitled to randomly interfere with a driver’s liberty interests and check on their sobriety. They can demand a motorist to provide roadside breath tests, perform physical coordination tests and/or provide a bodily substance for analysis, without a warrant, and based only on a reasonable suspicion: section 320.37 of the Criminal Code. If a driver does not comply with a demand pursuant to these sections, absent a reasonable excuse for the failure to provide the sample or perform the test, they may face criminal consequences.

[45] The constitutionality of the limitations on the liberty interest of motorists to be free from unreasonable search and seizure has been the subject of enumerable appellate authorities. The Supreme Court of Canada has reviewed various restrictions on drivers’ liberty interests and found them to be reasonable limits prescribed by law that are “demonstrably justified” in a free and democratic society: R. v. Hufsky, [1988] 1 S.C.R. 621 (S.C.C.); R. v. Ladouceur, [1990] S.C.J. No. 53 (S.C.C.); R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37 (S.C.C.)

[46] Drivers are routinely lawfully conscripted to provide evidence against themselves without a warrant. While the police have wide powers to ascertain driver sobriety and traffic regulation, their powers are not limitless. The propriety of any investigative step is still evaluated in consideration of the common law, the applicable provisions of the Code, a balancing of Charter interests and what is reasonable in the circumstances.

[47] The warrant and production order were issued pursuant to sections 487 and section 487.014 of the Code. Nevertheless, the reasonableness of the manner of the search following these lawful seizures must be informed by the provisions of the Part of the Criminal Code authorizing the seizure of blood in driving cases. These sections are especially instructive in a case involving a serious collision that caused bodily harm to a number of people, including Mr. Cadet.

iv. An examination of the related provisions in the Criminal Code:

a. The provisions related to driving offences:

[48] The Supreme Court of Canada in R. v. Orbanski; R. v. Elias, supra, at para 47 explained that whether an investigative step “ will fall within the scope of authorized police action is a question that necessarily calls for a case-specific inquiry”. In this case, the Applicant is alleged to have committed driving related offences. It is essential to contextualize the analysis of the reasonableness of the police conduct within the framework of similar provisions in the part of the Code that specifically address the seizure of blood for the purposes of investigating driving related offences.

[49] Before the Criminal Code sections relating to driving offences were amended in 2018, sections 254 and 256 set out the procedures for the police to properly demand a blood sample or to obtain a warrant for a qualified medical practitioner to seize a blood sample from a person. Pursuant to these sections, the police could compel a person to provide a blood sample as long as they met the statutory prerequisites.

[50] The police were empowered to require a medical professional to physically take a blood sample from a person, with or without their consent, for the specific purpose of allowing a proper analysis of the concentration of alcohol or drugs or both in their blood. These provisions permitted far more invasive investigative techniques than obtaining a warrant pursuant to section 487 which authorizes the passive seizure of a pre-existing blood sample that was acquired for legitimate medical testing at a hospital.

[51] It is instructive to review what the police were statutorily entitled to do with any blood sample that was lawfully obtained pursuant to either section 254 or 256 of the Code. Subsection 258(5) specifically addressed the manner of the subsequent search:

Testing of blood — alcohol and drugs

(5) Samples of an accused’s blood taken or obtained in the course of an investigation of an offence under section 253 may be analyzed to determine the accused’s blood alcohol concentration or blood drug concentration, or both. [emphasis mine]

[52] Based on a plain reading of this section, Parliament contemplated the seizure of a blood sample without a warrant or the issuance of an authorization compelling the provision of a blood sample for the purposes of testing it for either the presence of alcohol or drugs. This section specifically sanctioned police arranging for the testing of a person’s blood for “both” types of intoxicants regardless of the nature of the substance suspected or believed to be in the person’s system at the time of driving.

[53] The Supreme Court of Canada in CanadianOxy Chemicals Ltd v. Canada (Attorney General), [1999] 1 SCR 743 at para 14 directed that:

Statutory provisions should be read to give the words their most obvious ordinary meaning which accords with the context and purpose of the enactment in which they occur; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 21-22. It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids.

[54] There was no ambiguity in the wording of this section. Furthermore, there was no other logical or reasonable explanation for the inclusion of this provision in this part of the Criminal Code other than it was intended to statutorily empower the police to lawfully search for any intoxicant in a person’s blood regardless of the nature of the intoxicating substance relating to the driving offence under investigation.

[55] The provisions of the Criminal Code relating to driving offences were completely overhauled in 2018. The investigative techniques authorizing the seizure of a blood sample are codified. The police can compel a person to provide a blood sample, with or without their consent, in the following circumstances:

Samples of breath or blood — alcohol

320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and

(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood. [emphasis mine]

Warrants to obtain blood samples

320.29 (1) A justice may issue a warrant authorizing a peace officer to require a qualified medical practitioner or a qualified technician to take the samples of a person’s blood that, in the opinion of the practitioner or technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration or blood drug concentration, or both, if the justice is satisfied, on an information on oath in Form 1 or on an information on oath submitted to the justice by telephone or other means of telecommunication, that

(a) there are reasonable grounds to believe that the person has, within the preceding eight hours, operated a conveyance that was involved in an accident that resulted in bodily harm to themselves or another person or in the death of another person;

(b) there are reasonable grounds to suspect that the person has alcohol or a drug in their body; and

(c) a qualified medical practitioner is of the opinion that

(i) by reason of any physical or mental condition of the person, the person is unable to consent to the taking of samples of their blood, and

(ii) the taking of samples of the person’s blood will not endanger their health. [emphasis mine]

[56] If Mr. Cadet couldn’t provide a breath sample and/or he was unable to consent to the provision of a blood sample, based on the information in the ITO, the police could have demanded a blood sample or obtained a warrant to compel a qualified medical professional to take a sample of Mr. Cadet’s blood.

[57] If the police had seized Mr. Cadet’s blood pursuant to either of these provisions, they would have been legislatively authorized to test his blood for the presence of alcohol or drugs or both. Like the predecessor provision, section 320.3 unequivocally states that:

Testing blood — drug or alcohol

320.3 Samples of a person’s blood that are taken for the purposes of this Part may be analyzed to determine the person’s blood alcohol concentration or blood drug concentration, or both. [emphasis mine]

[58] The police are entitled to seek an analysis of lawfully seized blood for the presence of both drugs and alcohol regardless of the precise intoxicant that the police believe impacted a person’s ability to drive or preceded an accident that caused bodily harm. The statutorily permissible manner of the search includes testing blood for both drugs and alcohol. This section is consistent with the declaration of principle that the protection of society is well served by deterring the operation of a conveyance while under the influence of alcohol or a drug.

b. Warrant and productions orders:

[59] There are no similar provisions in section 487 of the Criminal Code with respect to the manner of the search when the police choose the less invasive investigative technique of securing a warrant to seize a pre-existing blood sample taken during legitimate medical testing. As result, counsel submitted that since the police only had reasonable grounds to believe that Mr. Cadet’s ability to operate a conveyance was impaired by or over the legal limit of alcohol in his system, they were limited to searching for evidence of that specific offence. I disagree.

[60] First, it would be inconsistent with other statutorily prescribed police powers relating to driving offences for me to find that the manner of the search specifically authorized by section 320.3 of the Criminal Code, for the exact same offence, should not apply to cases where the police pursue a less invasive investigative technique of seizing a blood sample that was already obtained for medical treatment. This provision provides clear guidance and certainty with respect to the scope of permissible investigative actions. The absence of a similar authorizing provision for the manner of the search when relying on a search warrant should not detract from the police powers that are necessarily implicit since it is expressly provided for with respect to driving offences.

[61] Secondly, section 487 is expansively worded and must be read harmoniously with the Part of the Code relating to the investigation of driving related offences. The police must possess reasonable grounds to believe that an offence had been committed and that the medical records and the seizure of his blood would “ afford evidence with respect to the commission of an offence ”. The police were seeking information about the commission, or not, of a driving offence. The examination of Mr. Cadet’s blood for the presence of any intoxicant and a review of the contents of all of his medical records could provide inculpatory or exculpatory evidence with respect to the commission of an offence, that is, a driving related offence that resulted in bodily harm. The evidence sought was rationally connected to the offence that was being investigated by the police.

[62] I found the Supreme Court of Canada’s decision in CanadianOxy Chemicals Ltd. v. Canada (Attorney General) supra, to be particularly helpful to this analysis. Acting pursuant to a lawfully issued warrant, the police seized both inculpatory and potentially exculpatory evidence. Since the exculpatory documents did not relate to the commission of an offence, the Respondents argued that the manner of the search exceeded the bounds of the warrant. Effectively, counsel is making an analogous argument that the evidence seized pertained to the commission of an offence beyond what the police were investigating so they exceeded what was reasonable in the circumstances.

[63] The language in section 487 ought to be expansively interpreted to reflect the investigative nature of the warrant process. The Supreme Court made apposite, insightful comments with respect to the manner of a search conducted as a result of a warrant issued pursuant to section 487 of the Criminal Code:

At paras 15 to 22: On a plain reading, the phrase "evidence with respect to the commission of an offence" is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.

This reading is supported by Dickson J.'s interpretation of almost identical language in Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 39:

The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject matters. [Emphasis added.]

We can assume that Parliament chose not to limit s. 487(1) to evidence establishing an element of the Crown's prima facie case. To conclude otherwise would effectively delete the phrase "with respect to" from the section. While s. 487(1) is broad enough to authorize the search in question even absent this phrase, the inclusion of these words plainly supports the validity of these warrants.

While s. 487(1) is part of the Criminal Code, and may occasion significant invasions of privacy, the public interest requires prompt and thorough investigation of potential offences. It is with respect to that interest that all relevant information and evidence should be located and preserved as soon as possible. This interpretation accords with the purposes underlying the Criminal Code and the demands of a fair and expeditious administration of justice.

A primary, though not exclusive, purpose of the Criminal Code, and penal statutes in general, is to promote a safe, peaceful and honest society. This is achieved by providing guidelines prohibiting unacceptable conduct and providing for the just prosecution and punishment of those who transgress these norms. The prompt and comprehensive investigation of potential offences is essential to fulfilling that purpose. The point of the investigative phase is to gather all the relevant evidence in order to allow a responsible and informed decision to be made as to whether charges should be laid.

At the investigative stage the authorities are charged with determining the following: What happened? Who did it? Is the conduct criminally culpable behaviour? Search warrants are a staple investigative tool for answering those questions, and the section authorizing their issuance must be interpreted in that light.

The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensure that the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability. It is not the role of the police to investigate and decide whether the essential elements of an offence are made out - that decision is the role of the courts. The function of the police, and other peace officers, is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid, and then present the full and unadulterated facts to the prosecutorial authorities. To that end an unnecessary and restrictive interpretation of s. 487(1) defeats its purpose. See Re Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449, p. 475:

Police work should not be frustrated by the meticulous examination of facts and law that is appropriate to a trial process. There may be serious questions of law as to whether what is asserted amounts to a criminal offence. However, these issues can hardly be determined before the Crown has marshalled its evidence and is in a position to proceed with the prosecution. [emphasis mine]

[64] It would be antithetical to the manner of the search sanctioned by section 320.3 and the broadly worded authorizing provisions in section 487 to ensure the preservation of “anything” that will “afford evidence” of the commission of “an offence”, to limit police powers to searching for the presence of one intoxicant or the other in a person’s blood particularly in the circumstances of a very serious collision causing bodily harm. The steps taken by the police to search or seize “anything” in Mr. Cadet’s blood or medical records have a proper nexus or connection to “afford evidence” of the offence under investigation.

[65] In terms of the reasonableness of the seizure Mr. Cadet’s medical records in the context of an impaired driving investigation, I adopt the reasons of Justice Di Luca in R. v. Hayatibahar, [2022] ONSC 1281 at para. 207:

While medical records pertaining specifically or solely to testing for the presence of drugs and alcohol relate very directly to the issue as framed in this portion of the ITO, it cannot be suggested that the balance of the medical records relating to Mr. Hayatibahar’s treatment do not also relate to the issue of the type or quantity of alcohol or drug in his blood. The records would reveal the nature of any medications administered during the course of his stay in hospital. They would reveal evidence of his behaviour, conduct and reactions while in hospital. Lastly, they would reveal whether Mr. Hayatibahar had any other medical issues that might provide alternate explanations for observed indicia of impairment. Viewed broadly, all the medical records sought would relate to the type or quantity of alcohol or drug in his blood and more broadly to the nature of the offences under investigation, see R. v. Manders, at para. 17.

[66] The request for testing Mr. Cadet’s blood for any intoxicants and the seizure of all his medical records from that day could afford evidence of any intoxicant in his system at the time of driving or that was administered subsequently as part of his treatment. This evidence could explain his failure to stop in time to avoid the collision after he was cut off and/or his confusion at the hospital about what happened and “more broadly the nature of the offence under investigation”.

[67] The comprehensive wording in sections 487 and 487.014 contemplates authorizations to search for “ anything” in a person’s blood or medical records “that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence” in respect of an impaired driving offence. In addition, when these sections are read in conjunction with the unequivocal statutory authorization for the police to have blood that was lawfully seized tested for the presence of drugs or alcohol, it validates the manner of the search conducted by the police in this case. Viewed purposively, the examination of Mr. Cadet’s blood and all the medical records would afford evidence related to the presence or absence of an intoxicant in Mr. Cadet’s system at the time of driving and the nature of the offence under investigation.

[68] I find that the manner of the search for alcohol and/or drugs and the seizure and review of all of Mr. Cadet’s medical records from that date was reasonable. As a result, Mr. Cadet’s section 8 Charter protected rights were not violated by the ensuing investigative steps taken by the officers.

D. Conclusion:

[69] The seizures of Mr. Cadet’s blood and medical records were authorized by lawfully issued search warrant and production order. The manner of the subsequent search of his blood and the review of all of his medical records from the date of the collision was reasonable and did not infringe the Applicant’s Charter rights.

[70] The application to exclude the results of the Center of Forensic Sciences analysis of Mr. Cadet’s blood and the contents of his medical records from the date of the collision is dismissed.