ONTARIO COURT OF JUSTICE
DATE: May 29, 2024
BETWEEN:
HIS MAJESTY THE KING
— AND —
ISAIAH PERTAB-MACPHERSON
Before: Justice H. Borenstein
Heard on: April 16, 2024
Reasons for Judgment released on: May 29, 2024
Counsel: Greg Elder, counsel for the Crown Sebastian Becker, counsel for the accused Isaiah Pertab-Macpherson
BORENSTEIN J.:
[1] This is my decision regarding the admissibility of blood and medical records seized pursuant to a warrant from Sunnybrook hospital which the Crown seeks to adduce at Mr. Pertab-Macpherson’s trial on charges of driving while his ability was impaired by alcohol and with a BAC over the legal limit.
[2] On July 30, 2022, Pertab-Macpherson was driving on the northbound Don Valley Parkway (“DVP”) just after midnight when witnesses saw his car cross three lanes of traffic, hit the centre median, flip over several times and end up on its hood. He was alone in the car at the time.
[3] Pertab-Macpherson was 19 years old. He was trapped inside the overturned car, wearing his seatbelt, hanging upside down and bleeding from his head. Several callers, including Darlene, called 911 and reported the incident. Fire, police and emergency services attended and extracted Pertab-Macpherson from the car. They saw a whisky bottle in the passenger side of the overturned car. He was taken to Sunnybrook Hospital for treatment where his blood was taken. He continued receiving treatment in Sunnybrook until August 11th.
[4] About two and a half months later, D.C. Silva took over this file. He reviewed officers’ notes, their body worn camera footage, dashcam footage turned over from other drivers, ICAD reports summarizing the content of the 911 calls and the collision report.
[5] As a result, he prepared two ITOs; one for a search warrant to obtain Pertab-Macpherson’s blood from Sunnybrook Hospital and the other for a Production Order for Sunnybrook’s medical records relating to Pertab-Macpherson’s treatment on July 30th, 2022. Both ITOs contained the same underlying information in support. D.C. Silva’s initial request was refused because he failed to specify which Criminal Code offence he was investigating. He resubmitted the ITO’s specifying the offences of impaired operation and the related BAC charge. The revised Applications were granted. Pertab-Macpherson’s blood was seized and analyzed. His BAC at the time his blood was taken was 185 milligrams of alcohol in 100 millilitres of blood. With respect to the medical records, Sunnybrook sent Officer Silva over 600 pages of Pertab-Macpherson’s medical records spanning treatment from July 30, 2022 to August 11th including psychiatric records. Officer Silva realized the records covered more dates than authorized. He only reviewed the records from July 30th but uploaded all the records received into the police Versadex system and disclosed them to the Crown which he believed was his obligation. Those records were all disclosed to the defence.
[6] Pertab-Macpherson challenges the admissibility of the blood and medical records on several bases.
[7] First, he submits the ITOs did not contain reasonable and probable grounds to believe any offence had been committed and therefore the warrant and Production Order (“Orders”) should not have been granted. This is a challenge to the facial validity of the Orders.
[8] Second, he submits the affiant mislead the issuing justice by not including facts which he says tended to show no offence was committed and included facts Silva knew or ought to have known knew were wrong, misleading or worthless. He submits those factors were not minor or technical and therefore cannot be corrected by amplification. As such, those “facts” should be excised from the ITO in assessing its validity. These are attacks on the sub-facial validity of the Orders.
[9] Pertab-Macpherson was granted leave to conduct a limited cross examination of the affiant which has occurred.
[10] I turn now to the challenges to the Orders.
[11] I begin by noting that seizures pursuant to warrants and Production Orders are presumptively valid. The onus is on Pertab-Macpherson to establish a violation of the Charter on a balance of probabilities.
[12] Pursuant to s. 487 of the Code, a search warrant could only issue in this case if the issuing Justice was satisfied there were reasonable grounds to believe that the blood would “afford evidence with respect to the commission of an offence”, in this case, impaired driving or driving with an unlawful BAC.
[13] In reviewing the ITOs, the issue is not whether I or another Justice would have authorized those Orders, but whether the issuing Justice could reasonably have concluded there were reasonable grounds to issue them.
[14] The ITOs contain the following relevant information (paragraphs 16 to 20):
- Pertab-Macpherson was the lone occupant and driver of the vehicle;
- the roads were dry and in good condition;
- his vehicle crossed three lanes of traffic, hit the centre median and flipped over in a single vehicle accident;
- a witness, Darlene, called 911 and reported the collision and advised 911 she suspected the driver was impaired; and
- the police attended and saw a whisky bottle in the front passenger side of the car.
[15] In paragraph 20, D.C. Silva writes he believes Pertab-Macpherson drank alcohol prior to and while driving, and was impaired by alcohol at the time of driving. I infer those comments reflect his subjective belief as there are no facts or direct evidence Pertab-Macpherson consumed alcohol while or before driving.
The Facial Validity Challenge
[16] Turning to the challenge to the facial validity of the ITOs; could the issuing justice have reasonably concluded that there were reasonable grounds to believe Pertab-Macpherson operated a vehicle while his ability to do so was impaired by alcohol. The issue is whether D.C. Silva’s belief was objectively reasonable.
[17] Based on the five factors mentioned above, without excision or amplification, I am satisfied the issuing Justice could have so concluded there were reasonable grounds for the Orders. An unexplained single vehicle accident, with nothing more, while important, would not amount to reasonable grounds in this case. However, Silva had information that a whisky bottle was found in the front passenger side of the car and Darlene suspected the driver was impaired. The implication of stating that a whisky bottle was found in the front is that it was open and reflected consumption which is significant. Indeed, that must be why Silva swore he believed Pertab-Macpherson was drinking while driving. Those factors; the unexplained accident, an open bottle of whisky in the front of the car and Darlene’s opinion could reasonably lead the issuing justice to conclude there were reasonable grounds to believe Pertab-Macpherson operated the vehicle while impaired.
[18] The facial challenge to Orders fails.
The Sub-Facial Challenge
[19] Turning to the sub-facial challenge, Pertab-Macpherson seeks to excise references to the whisky bottle and Darlene’s opinion from the ITO on the basis they were misleading. If successful, the validity of the ITOs will be assessed without those items included. Excision of facts in an ITO will occur if they were misleading and cannot be corrected through amplification. Amplification can occur only where the errors are minor or technical in nature.
The Whisky Bottle
[20] The presence of a whisky bottle in the front of the car was extremely powerful information in this ITO. Its relevance comes from the implication that it was open and therefore Pertab-Macpherson was drinking before or while driving. A sealed bottle has no relevance and carrying it in a car is not an offence even under the L.L.A. The cross-examination of D.C. Silva revealed he had no information whether the bottle was open, closed or sealed. His evidence that even a sealed bottle is relevant because there may have been other bottles drunk and tossed out the window or because Pertab-Macpherson may have been drunk and drove to the liquor store to buy more alcohol is speculative. Indeed, D.C. Silva himself must have assumed the bottle was open because he swore in the ITO that he believed Pertab-Macpherson was drinking while driving even though there was no evidence of that. I find that including the reference to a bottle of whisky in the front, as evidenced by D.C. Silva’s own assumption, would likely also have lead the issuing Justice to believe the bottle the bottle was open, as there is no other relevance to that fact. Accordingly, reference to the bottle without stating the police did not know if it was open or sealed was misleading in effect and that is not a minor or technical matter that can be corrected through amplification. The reference to the whisky bottle will therefore be excised from the ITO. Although not necessary to do so, I would add that, had I not concluded the reference to the whisky bottle was misleading and not excised it from the ITO, I would have found that the inclusion of the whisky bottle without any information about whether it was open or closed would have added nothing to the grounds in this case.
Darlene’s Opinion
[21] Turning to Darlene’s opinion that she suspected the driver was impaired.
[22] D.C. Silva testified he did not have access to Darlene’s 911 call when he sought the Orders even though he wrote the ITO more than two and a half months after the incident. He therefore relied on the ICAD report summarizing Darlene’s call to 911 which read that Darlene reported a collision and suspected the driver was impaired. We know from the actual call that it was the operator who asked Darlene if she suspected the driver was impaired and Darlene replied that anyone driving at night might be impaired. Both counsel submit I should evaluate the fairness of Silva’s ITO regarding Darlene’s information based solely on the ICAD which stated that Darlene suspected the driver was impaired.
[23] Turning to the significance of that opinion or suspicion and whether it was misleading.
[24] A lay witness, Darlene, included, can express an opinion about someone’s impairment (see Graat). However, when a Justice assesses the weight, if any, to be given to such an opinion, there must be some minimal consideration and assessment of the observed facts in support of the opinion. I do not suggest a Justice on a search warrant application should evaluate the underlying factual basis for an opinion and consider competing inferences as if it were a trial. However, a Justice, even on determining whether reasonable grounds exist, must be made aware of some underlying observations in support of the opinion to conduct a minimal assessment of the opinion in deciding the weight to afford the opinion. In this case, there was nothing said by Darlene in support of her opinion. It was a bald suspicion without more.
[25] The 2002 Ontario Court of Appeal decision in Costello (2002), ONCA C36444, dealing with the lawfulness of a breath demand, while distinguishable, is helpful. An officer was told by three civilians that a suspected impaired driver was on the exit ramp of a highway. Understandably, the officer did not spend time questioning the civilians as to the basis for their opinion but rushed to stop the driver. When he did, he saw that the driver had bloodshot eyes, slurred speech and was swaying when he walked and made a breath demand. The trial judge found the demand was objectively reasonable. The Summary Conviction Appeal Court disagreed. In restoring the conviction and affirming the validity of the demand, Rosenberg, J.A. for the Court held the demand was objectively reasonable in light of the “tip from the civilian, confirmed by the officer’s own observations that the respondent was swaying, had an odour of alcohol, and had bloodshot eyes”. I note the importance of the civilians’ tip being confirmed by the officer’s own observation and this all related solely to the issue of the demand.
[26] In this case, Darlene’s suspicion, with nothing offered in support, is of little value. But D.C. Silva, in relaying it in the ITO as he did, did not mislead the Justice. It was a bald suspicion. But it was not misleading and will not be excised from the ITO. Its value will be assessed along with the other information in the ITO.
Conclusion on the Validity of the Warrant and Production Orders
[27] I recognize a single vehicle accident is a very significant fact in determining whether reasonable grounds exist. In my view, absent the reference to the whisky bottle, there was no basis upon which the issuing justice could have granted the Orders sought. An unexplained accident together with a witness who suspected the driver was impaired, with nothing more, does not amount to reasonable and probable grounds to believe an offence was committed. The reference to the whisky bottle in the front was key to establishing grounds. It implied the bottle was open and being consumed. Indeed, the officer swore he believed Pertab-Macpherson was consuming while driving. In my view, absent that information, the Orders could not have reasonably been issued.
[28] I excised the reference to the whisky bottle because I found it was misleading in this case as the implication is it was opened. However, to repeat, had I not excised it, reference to a bottle of alcohol in a car (be it a bottle of whisky, wine or beer) without evidence that it had been unsealed and opened would not have added to the grounds.
[29] Accordingly, the seizure of the blood and medical records in this case were warrantless and violated s. 8 of the Charter.
S. 24(2)
[30] Turning to s. 24(2). The question is whether admitting the evidence seized from the hospital pursuant to an invalid warrant could bring the administration of justice into disrepute.
[31] I begin with the seriousness of the Charter infringing conduct of seizing the accused’s blood from the hospital without a valid warrant. It is important to look at the seriousness from a long-term perspective.
[32] There is an irony here in that I do not view the conduct of officer Silva as particularly serious, but view the effect of that conduct as serious. He reviewed the file and submitted an ITO seeking a warrant and Production Order. It was only the reference to the whisky bottle that was misleading in what it implied. I believe it would have lead the Justice, as it apparently lead D.C. Silva, into believing that bottle was open. I note D.C. Silva assumed, and then swore, that he believed Pertab-Macpherson was drinking while actually driving. So, while the conduct of D.C. Silva was not serious, the effect of failing to include that the police did not know whether the bottle was open or sealed was the state was able to seize Pertab-Macpherson’s blood and medical records without a valid warrant and that is serious and this factor tends to favour exclusion.
[33] Likewise, seizing one’s blood and medical records from a hospital without a valid warrant is a significant impact on one’s right to be secure against unreasonable search and seizure of one’s blood and medical records and also favours exclusion.
[34] The third Grant factor, society’s interest in cases being decided on their merits, significantly favours admission of this reliable evidence.
[35] On balance, while close, I am of the view that allowing the seizure of Pertab-Macpherson’s blood and hospital records to be used as evidence in this case could bring the administration of justice into disrepute. The evidence will be excluded.
Released: May 29, 2024 Signed: Justice H. Borenstein