ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-58
DATE: 2013-12-31
B E T W E E N:
Her Majesty The Queen
D. King, for the Crown Respondent
Respondent
- and -
Keith Jonathan
C. Spettigue, for the Accused Applicant
Applicant
HEARD: in Brantford November 12-20, 2013
The Honourable Mr. Justice T. R. Lofchik
[1] The accused Keith Jonathan has made application for an order excluding from evidence at trial the medical records from Brantford General Hospital relating to his stay commencing August 29, 2010. He was taken to that hospital as a result of his involvement in a motor vehicle accident in the early hours of August 29, 2010.
[2] The accused now stands charged with 2 counts of impaired operation of a motor vehicle causing death, 4 counts of impaired operation of a motor vehicle causing bodily harm, 2 counts of operating a motor vehicle while over .08 causing an accident resulting in death and 4 counts of operating a motor vehicle while over .08 causing an accident resulting in bodily harm.
[3] In the course of his investigation, then Detective Sergeant Darren Montour obtained an Order to Produce the accused’s medical records at the Brantford General Hospital, including the results of blood tests done on samples of the accused’s blood, and the Crown seeks to enter these records into evidence at trial.
[4] It is the position of the Crown that the hospital records were lawfully obtained with a Production Order. The defence argues that at no time did Keith Jonathan consent to the release of his personal medical information, that the Production Order was an improper way of obtaining the information in question, and further that the Information to Obtain the Production Order for medical records and laboratory reports of Keith Jonathan from Brantford General Hospital was flawed and that the Production Order should not have issued.
[5] The defence seeks an order quashing the Production Order and excluding all evidence relating to the testing, analysis and further analysis of the blood alcohol of Keith Jonathan on or about August 29, 2010 including the CFS Toxicology Report.
Facts
[6] At or about 2:30 a.m. on August 29, 2010, Keith Jonathan is alleged to have been operating a grey Ford F150 pickup truck traveling eastbound on Third Line Road, Township of Tuscarora near 1961 Third Line Road. A black Saturn traveling westbound on Third Line Road collided with the F150 resulting in the deaths of two passengers in the Saturn and injury to four others.
[7] At 2:30 a.m. Six Nations Police Service received notice of the motor vehicle accident.
[8] At 2:41 a.m. Six Nations Police Services Officers Troy Monture and Chandon Hill arrived on scene. Fire and ambulance services were already on scene. The deceased were still inside the Saturn.
[9] At 3:01 a.m. D/Sgt. Darren Montour was notified and assigned the investigation of a “motor vehicle collision on Third Line east of Chiefswood Road with one confirmed fatality”.
[10] At 3:46 a.m. D/Sgt. Montour arrived on the scene and was advised that there were two deceased. Once on the scene D/Sgt. Montour recognized the F150 as belonging to Keith Jonathan and noted “severe front end damage”.
[11] It is alleged that officers Monture and Hill informed D/Sgt. Montour that they had spoken with Keith Jonathan and concluded that he had been drinking and that he was intoxicated.
[12] D/Sgt. Montour also discovered that Keith Jonathan had been taken by ambulance to Brant General Hospital.
[13] At 4:58 a.m. D/Sgt. Montour arrived at Brantford General Hospital. He alleges that Keith Jonathan was in the emergency room examination area.
[14] At 5:05 a.m. D/Sgt. Montour alleges that he was in the examination room and that he had conversation with Keith Jonathan.
[15] D/Sgt. Montour alleges that he stood at the foot of the bed or examining table and spoke to Keith Jonathan. D/Sgt. Montour alleges that he observed Keith Jonathan to be conscious, that his eyes appeared to be red and bloodshot and that “speech was slurred when he spoke”. D/Sgt. Montour alleges that he asked Keith Jonathan about his leg injury.
[16] D/Sgt. Montour acknowledges that during this conversation Keith Jonathan was wearing an oxygen mask that covered his mouth and nose.
[17] D/Sgt. Montour acknowledges that he received information about Keith Jonathan’s various medical procedures from Nurse Hielema.
[18] On September 7, 2010, D/Sgt. Montour prepared a Production Order and Information to Obtain in support pursuant to the Criminal Code of Canada Section 487.012 for the Medical Records and Laboratory Reports of Keith Jonathan compiled by Brantford General Hospital during his treatment. The Production Order was issued by a Justice of the Peace in Brantford on September 8, 2010.
[19] On September 10, 2010 D/Sgt. Montour attended Brantford General Hospital and seized medical records and laboratory reports relating to Keith Jonathan’s treatment on or about August 29, 2010 including the results of analysis of his blood.
[20] On October 22, 2010, D/Sgt. Montour received a report from the Centre of Forensic Sciences relevant to Keith Jonathan’s blood alcohol level.
[21] On October 23, 2010, Keith Jonathan was arrested. D/Sgt. Montour alleges that Keith Jonathan was read Rights to Counsel and a Caution and that he declined both legal advice and the opportunity to say anything about the incident.
[22] The Information to Obtain dated September 7, 2010 contained 46 paragraphs. Of those only two paragraphs related to Keith Jonathan. D/Sgt. Montour described his grounds for seizing Keith Jonathan’s Medial Records and Laboratory Reports as follows:
“usual signs of alcohol impairment, slurred speech, odour of alcohol on his breath and red bloodshot eyes”.
[23] The Information to Obtain Production Order sworn by D/Sgt. Darren Montour sets out the particulars of the collision and the resultant injuries and details of the investigation of the collision. The relevant parts of the Information pertaining to the accused Keith Jonathan are as follows:
“39. The driver of the Ford pickup, Keith JONATHAN also displayed signs of alcohol impairment when first officers on scene, Chandon HILL and Troy MONTURE spoke with him. The [sic] observed him to have an odour of alcohol on his breath. I attended the Brantford General Hospital at 4:55 a.m. and spoke with Keith JONATHAN who was being examined in the emergency room treatment area. I observed him to have red bloodshot eyes and slurred speech when he spoke. These are all signs of alcohol impairment.
- It had been in my experience as a police officer that hospitals take blood samples from patients and conduct of series of toxicology tests. One of the tests conducted is an alcohol level concentration in the patient’s blood. The test is conducted by laboratory technicians and the amount of alcohol in the blood is measured in millimoles per liter of blood. The millimole amount can then be converted into milligrams of alcohol in 100 milliliters of blood which is used in court proceedings against persons charge [sic] with driving offences involving alcohol. However the conversion can be only calculated by a Toxicologist from the Center of Forensic Sciences in Toronto. The Toxicologist then provides a Certificate of Analyst which states the blood alcohol concentration in milligrams of alcohol in 100 milliliters of blood.
GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTTED
Keith JONATHAN was alone in his Ford pickup at the time of the collision. He had the usual signs of alcohol impairment, slurred speech, odour of alcohol on his breath and red bloodshot eyes. …
Based on the above circumstances, I BELIEVE that both Phillip MARTIN and Keith JONATHAN were impaired by alcohol at the time of the collision. As a result of the collision Joshua FARNHAM and Samantha Lee HENRY-THOMAS died from injuries they received. The other occupants in the Saturn, Jolene BEAVER, Stevie Nicole HENRY-THOMAS, and James McAULAY were all seriously injured in the collision. Phillip MARTIN and Keith JONATHAN are going to be charged with impaired driving causing death (2 counts each) contrary to section 255(3) of the Criminal Code of Canada and impaired driving causing bodily harm (4 counts each), contrary to section 255(2) of the Criminal Code of Canada.”
Issues
[24] Should the Production Order with respect to the medical records and the analysis of the blood of Keith Jonathan be quashed and all evidence relating thereto excluded from the trial:
(a) Firstly because the production of the records and the sample was obtained by Production Order pursuant to Section 487.012 of the Criminal Code rather than a Search Warrant under Section 487 and;
(b) Because the Information to Obtain the Production Order is flawed.
Analysis
[25] Section 487 of the Criminal Code provides for the issuance of a search warrant as follows:
- (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is 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 …
[26] Section 487.012 of the Criminal Code provides for the issuance of a Production Order as follows:
(1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a),
(a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or
(b) to prepare a document based on documents or data already in existence and produce it.
(2) The order shall require the documents or data to be produced within the time, at the place and in the form specified and given
(a) to a peace officer named in the order; or
(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.
(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that
(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;
(b) the documents or data will afford evidence respecting the commission of the offence; and
(c) the person who is subject to the order has possession or control of the documents or data.
[27] D/Sgt. Montour sought and obtained Keith Jonathan’s personal, medical and laboratory records for treatment given to him at the Brantford General Hospital on August 29, 2010 through an ex parte application brought September 8, 2010 pursuant to Section 487.012(3)(a) of the Criminal Code.
[28] The defence argues that the procedure provided for in Section 487.012 of the Criminal Code is inappropriate in these circumstances.
[29] The defence submits that Keith Jonathan had an unextraordinarily high expectation of privacy in his personal medical records and laboratory reports stemming from his treatment such that the standard applicable to Criminal Code Section 487.012 was constitutionally low and that Charter Section 8 was contravened.
[30] The defence argues that the actual standard to be applied by a Justice, for the issuance of Production Order pursuant to Section 487.012(3)(a) has not been judicially determined by an appellate court. They argue in addition that Parliament clearly intended to create a different standard for the issuance of a general Production Order pursuant to Section 487.012(3)(a) by including the phrase “is suspected to have been committed” in the subsection.
[31] The defence argues that, given the heightened nature of Keith Jonathan’s privacy interest and the statutory duties of confidentiality involved in personal medical records, the production of such records ought to have been made based upon the higher standard contained in Section 487(1)(b) of the Criminal Code.
[32] The defence submits that the phrase “or is suspected to have been committed” in Section 487.01(2)(3)(a) of the Criminal Code imports a lesser standard of reasonable suspicion.
[33] I find that the arguments raised by the defence with respect to this issue to be without merit. In the absence of a direct attack on the constitutionality of Section 487.012, that section must be taken as meeting the requirements of the Constitution including the privacy protections contained in Section 7 and 8 of the Charter. R. v. Serendip (2004) 2004 39011 (ON CA), 189 C.C.C. (3d) 417 at paras. 22, 23, 24, 33 and 34.
[34] Section 487.012 of the Criminal Code of Canada allows a justice or a judge to order production to a police officer of documentary evidence provided certain conditions are met. These conditions are:
(a) There must be a written application on oath; and
(b) There must be reasonable grounds to believe that
(i) An offence under the Criminal Code (or other act of parliament has been) or is suspected to have been committed;
(ii) The documents will afford evidence respecting the commission of the offence; and
(iii) The person subject to the order has possession or control of the documents.
Criminal Code of Canada Section 487.01(2)(3)
[35] The language of Section 487.012(3)(a) is in essence the same as the language of Section 487(1)(a), the search warrant provision. Given the similarity of the wording in Section 487.012(3) and Section 487(1)(a), it is irrelevant that the hospital records were obtained by a Production Order as opposed to a search warrant.
[36] In any event, the Production Order was obtained on the basis of an Information to Produce in which it was sworn that there were reasonable grounds to believe the applicant committed the offence of impaired driving causing death (that is, upon the same standard as required for the issuance of a search warrant).
[37] So far as the sufficiency of the Information to Obtain is concerned, the defence argues that by their nature, the paragraphs referring to the accused Keith Jonathan and his condition are nothing more than bold and conclusory statements and they do not reasonably support the inferences drawn from them by the affiant.
[38] The defence argues that the Information to Obtain contains insufficient information to support the conclusion that the documents sought exist or that they would afford evidence respecting the commission of the offences alleged.
[39] In addition, the defence submits that the presence of the odor or alcohol does not justify a conclusion of impairment.
[40] The defence also submits that given the deployment of the airbag and the fact that there was a collision in which he was involved, any physical symptoms attributed to Keith Jonathan including red eyes do not support an inference of impairment.
[41] The defence further submits that D/Sgt. Darren Montour deliberately misled the issuing justice by failing to refer to the fact that Keith Jonathan was wearing an oxygen mask when he interviewed him and that the interview was brief, being less than one minute.
[42] Based on the foregoing, the defence submits that the Information to Obtain was factually insufficient to justify the issuance of the Production Order.
[43] There was further evidence produced on this motion which has a bearing upon the validity of the Information to Obtain and the issue of whether the Production Order should have been granted. The following is relevant:
(i) Keith Jonathan admitted that he was the owner and driver of the pickup truck involved in the collision in question and that he was turning left into his driveway at the time the collision occurred.
(ii) D/Sgt. Montour testified that he observed damage to the steering wheel of the pickup truck and concluded that the driver must be injured. The accused had an injury to his leg consistent with contact with the steering wheel.
(iii) At the hospital, Det. Sgt. Montour observed the accused’s eyes to be red and bloodshot and his head was bobbing up and down. He had an oxygen mask on. The accused’s voice was muffled by the mask but the officer observed that he slurred his words.
(iv) Det. Sgt. Montour had known Mr. Jonathan for a long time and had seen him drunk before. Prior to becoming a police officer, he had worked with him on high steel and had drank with him on previous occasions. Based on his previous experience with Mr. Jonathan and from his observations at the hospital, he formed the opinion that he was impaired by alcohol.
(v) Det. Sgt. Montour was informed by the emergency nurse Liona Hielma that blood had been taken from Mr. Jonathan in the course of treatment. His previous experience led him to believe that a blood alcohol analysis would routinely be done in these circumstances.
(vi) On cross-examination, Det. Sgt. Montour conceded that the airbag on the accused’s pickup truck had deployed, that airbags are coated with some kind of dust and it is possible that some of the dust got into Mr. Jonathan’s eyes.
(vii) The only conversation he had with the accused at the hospital was to ask the accused how he was doing and to have the accused reply “I’m ok”.
(viii) Det. Sgt. Montour testified that in the course of his training he had observed a demonstration on how airbags work. He has not observed anyone having bloodshot eyes as a result of the deployment of an airbag.
(ix) June Jonathan, the accused’s sister-in-law testified that she lived in the vicinity of where the collision occurred and heard the collision from her bedroom. She opened the window and heard Keith Jonathan mumbling as he walked up the driveway towards her house. He knocked on her door and asked her to call for help. A transcript of her 911 call indicates that she told the dispatcher that Jonathan was “pretty intoxicated” and that he was “pretty high”. She testified that she concluded that he was intoxicated by the way he was standing at the back door. She had seen him intoxicated before.
(x) Chandon Hill one of the first responding officers to the scene, testified that the accused is his uncle and that he had little contact with him at the accident scene. He did not notice the smell of alcohol on the accused’s breath and did not form an opinion as to his sobriety.
[44] In R. v. Garafoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) at 188, Sopinka J. described the grounds upon which a reviewing court may set aside a wiretap authorization:
“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 the 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 pre-requisite to review, the sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”.
[45] Justice Sopinka subsequently held in R. v Grant (1993), 1993 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.) at 195 that this test also applied to a review of search warrants.
[46] This test was restated by the Ontario Court of Appeal in R. v. Manders 2007 ONCA 849, [2007] O.J. No. 4757 (Ont. C.A.) at para. 11:
“The test the trial judge was required to apply in determining the complaint of constitutional infringement raised by the appellant at trial was whether there was reliable evidence in sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant. The test was not whether in the reviewing judge’s opinion, the warrant should have been issued much less whether the reviewing judge would have issued the warrant himself if asked…”
[47] Durno J. stated at para. 75 in R. v. Colbourne, [1998] O.J. No. 5913 (Ont. S.C.J.) (affirmed) by the Ontario Court of Appeal at 2001 4711 (ON CA), [2001] O.J. No. 3620 that:
“There is a constitutional presumption of validity with respect to a search conducted pursuant to a search warrant and the information to obtain sworn in support of the issuance of the warrant. Therefore the applicant bears the evidentiary burden on the balance of probabilities of establishing the unreasonableness of the search by attacking the information to obtain, or the search warrant itself.”
[48] In that regard, I must keep in the mind the comments of Hill J. in his summary conviction appeal judgment in R. v. Censoni, [2001] O.J. No. 5189 (Ont. S.C.J.) at para 43, that “Reasonable grounds in the context of a s. 254(3) demand is not an onerous threshold.” It is certainly less than a prima facie case although more than a mere suspicion. The same principles apply here.
[49] I am also mindful of the comments of Labrosse J.A. at page 384 of the Court of Appeal’s reasons in R. v. Stellato that “If the evidence of impairment establishes any degree of impairment from slight to great the offence [of impaired driving] has been made out.”
[50] The defence has attempted to explain away or minimize each factor enumerated by D/Sgt. Montour in isolation from all the other factors. In para. 44 of Censoni, however, Hill J. warns against “unbundling” of the facts. In particular reference to Information to Obtain Search Warrants, he says at para. 20 in R. v. Sanchez, 1994 5271 (ON SC), [1994] O.J. No. 2260 (Ont. S.C.J.), that:
“The appropriate approach for judicial review of a search warrant information is scrutiny of the whole document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information provides the fair and reasonable context for the assertions in question.”
[51] I am not, therefore, to substitute my own view for that of the justice of the peace. In order for me to overturn his decision, counsel for Mr. Jonathon must establish on the balance of probabilities that the justice of peace could not have been satisfied that there were objectively reasonable grounds based upon the Information to Obtain and the information which has come out on this review to issue the Order to Produce.
[52] I find the relevant information to be as follows:
Reasonable grounds to believe an offence has been committed:
- Reasonable grounds to believe the applicant was driving a motor vehicle:
• The applicant owned the pick-up truck involved in the accident. The applicant lived at the address where the accident occurred and admitted driving the vehicle and attempting to make a left turn into his residence.
• Shortly after the accident the applicant walked to his sister-in-law and brother’s house and asked her to call for help.
- Reasonable grounds to believe the applicant’s ability to operate a motor vehicle was impaired by the consumption of alcohol:
• The collision appeared to have happened because the applicant turned into his own driveway into the path of another car. At least one of the officers who dealt with him on the scene reported that he displayed signs of alcohol impairment and observed him to have an odour of alcohol on his breath, glossy eyes and slurred speech. At the hospital Detective Sergeant Montour saw the applicant had red bloodshot eyes and slurred speech, albeit on the basis of limited contact but with previous experience of having worked and drunk with the applicant and observed the applicant drunk.
• The evidence of the first witness to see the applicant after the accident, June Jonathon, reporting to the 911 operator that Jonathon was “intoxicated” and “pretty high” based upon experience of having known him for decades.
- Reasonable grounds to believe the applicant’s impairment was a significant contributing cause to the deaths of the victims:
• The evidence outlined above and the uncontested fact that two people died in the collision.
- Reasonable grounds to believe that the applicant’s medical records would afford evidence respecting the commission of the offence:
• Detective Sergeant Montour’s general experience that the hospital takes blood and analyzes it for alcohol concentration.
• Hospital staff specifically told Detective Sergeant Montour that blood was taken.
[53] Upon considering all of the facts set out above I am not persuaded that the defence has established that the justice of the peace could not have been satisfied that there were reasonable grounds to believe that offence against the Criminal Code has been committed, that the documents or the data sought will afford evidence respecting the commission of that offence and that the person who is subject to the order being sought had possession or control of the documents being sought.
[54] I find that although there may be some inaccuracies and omissions in the Information to Obtain they are inconsequential. They would not have misled the authorizing Justice such that he would not have issued the Production Order. Further, there are no concerns about the good faith of the police in their investigation or in the application for the Production Order. The application will be dismissed.
[55] In light of this conclusion it is not necessary for me to consider the application of S. 24(2) of the Charter.
LOFCHIK J.
Released: December , 2013
COURT FILE NO.: CR-12-58
DATE: 2013-12-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Keith Jonathan
Applicant
REASONS FOR JUDGMENT
Lofchik J.
TRL:mg
Released: December 31, 2013