Court File and Parties

COURT FILE NO.: 13856/15 DATE: 2017-05-08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – BRYNN ALEXANDRA CAMPBELL Applicant

Counsel: David R. Parke, for the Crown Brian J. Scott, for the Applicant

HEARD: April 27, 2017

Justice B.A. Glass

Garofoli Application to Cross-examine Affiant and Sub-affiants

[1] The Applicant seeks an order to cross-examine the affiant and sub-affiants for search warrants on the basis that she will be able to show improper procedures applied by the investigating police service.

[2] The core of the search warrant information related to a search by police for health records as well as blood and urine samples to show that the blood alcohol concentration would be higher than permitted by law.

[3] The information came from hospital personnel who either openly divulged or were overheard by an officer who positioned himself to hear what medical personnel were saying. The information is private information and cannot be divulged to anyone, including police, without the consent of the patient or on the basis of a court order requiring its disclosure.

[4] The application claims that the affiant failed to be open with the issuing Justice of the Peace and created the impression of being in possession of information about the Applicant such that it could lead to charges.

[5] The problem with such information is that it was obtained unlawfully. If one gathers information unlawfully and then claims to use it for the prosecution of charges pursuant to the Criminal Code, such evidence may be excluded from use at a trial if it is found to lead to a Charter infringement.

[6] The information to obtain in the affidavit in question fails to show that an officer acted improperly by either asking hospital personnel to provide private and privileged information about a patient when there was no consent from the patient and there was no court order permitting such gathering of evidence.

[7] Mr. Scott submits that he should be permitted to cross-examine the affiant and sub-affiants so that he can show that the above is correct and also to show additional information not disclosed to the Justice of the Peace. This is not a fishing expedition but rather an examination of an officer who obviously had more information that he failed to disclose.

[8] Had the additional information been provided, the issuing Justice of the Peace would not have issued the search warrants because there was no consent from Ms. Campbell nor was there an order requiring the hospital staff to release the information. In effect, the police were attempting to jump to the head of the line without following proper protocol. Mr. Scott takes the position that the information will confirm this whereby the court should then be receptive to the Applicant’s position that what was disclosed should be excluded from evidence tendered at trial.

[9] The Crown does not agree with Mr. Scott’s position on the basis that an officer innocently overheard hospital personnel talking and used that information lawfully. The information provided to the Justice of the Peace reveals such background so that the Justice of the Peace was fully informed and could issue the search warrants in question. Having done so, the Justice of the Peace was not misled. Further, there is no need to cross-examine the affiant or sub-affiants to the extent requested because the information was presented to the judicial officer.

[10] The Crown concedes cross-examination of sub-affiant Detective Constable Lee but challenges the extent of questioning of affiant Detective Constable Rayne and is opposed to cross-examination of Constable Robinson.

[11] The information to obtain from Detective Constable Rayne specifically notes that the officer knows that when a person receives medical treatment, records are kept of the condition and treatment of the person. He called the hospital to get confirmation that the health records were being stored there. That was on October 27, 2013. And Constable Lee spoke with a laboratory representative at the hospital on October 31, 2013 to confirm that blood samples for the Defendant were still at the hospital.

Issues

[12] Is there a foundation to permit cross-examination of the affiant and sub-affiants about the affidavit to obtain search warrants and the supporting material used for the warrants?

[13] If there is such a foundation, should cross-examination be restricted in any way?

Analysis

[14] Paragraph 43 of the application deals with cross-examination of the affiant Detective Constable Rayne with respect to the following:

(i) The hospital records only related to urine test results and not blood. Sub-affiant P.C. Robinson had reported that he could smell alcohol while standing 3-4 feet from the Applicant; (ii) The typed report of sub-affiant Constable Robinson on November 1, 2013 had noted that he did not observe the Applicant to display either slurred speech or have glassy eyes; (iii) Sub-affiant Constable Robinson reported on November 1, 2013 that he overheard a nurse mention the urine test results of the Applicant which was then followed by this same statement being repeated once again by Constable Robinson; (iv) Sub-affiant Constable Robinson made no attempt to ascertain the identity of the nurse or nurses who were at the nursing station reviewing the test results; (v) Sub-affiant Constable Robinson advised sub-affiant Detective Constable Lee that he could not determine if the Applicant was impaired nor could Durham EMS; (vi) Sub-affiant Constable Robinson advised sub-affiant Detective Constable Lee that he could not detect the odour of alcohol when investigating; (vii) Sub-affiant Detective Constable Lee noted that sub-affiant Constable Robinson advised him that he had been told by a nurse that the Applicant’s ethanol level was 43; (viii) The supplementary report of sub-affiant Detective Constable Lee noted the observations of a civilian that related what appeared to be erratic conduct on the part of the deceased Harriet Sorri; (ix) The supplementary report of Detective Constable Al McDonald did not mention that the elderly driver turned left off Grandview Drive nor did the report suggest that the elderly driver was confused.

[15] These areas may be explored in the cross-examination of the affiant.

[16] Paragraph 44 of the application deals with the cross-examination of sub-affiant Detective Constable Lee for the following:

(i) Constable Robinson was detailed to investigate if the Applicant was impaired; (ii) Sub-affiant Constable Robinson told him that he could not detect the odour of alcohol when in proximity to the Applicant; (iii) Sub-affiant Constable Robinson told Detective Constable Lee that a nurse told him that the ethanol level of the Applicant was 43; (iv) Constable Robinson made no mention to him that after initially overhearing a nurse mention the ethanol test results to Constable Robinson looked towards the nurse and this statement was repeated with the nurse noting surprise in the tone of her voice.

[17] These areas may examined in the cross-examination of sub-affiant Detective Constable Lee.

[18] Paragraph 45 of the Application deals with the cross-examination of sub-affiant Constable Robinson for the following:

(i) The circumstances that gave rise to Constable Robinson being in proximity to the nurse station in the emergency wing of the hospital on October 27, 2013 (ii) Whether or not Constable Robinson asked a nursed what the urine test results indicated; (iii) Whether or not Constable Robinson indicated to Detective Constable Lee that he had been told what the urine test results revealed when he spoke to Detective Constable Lee at the hospital on October 27, 2013; (iv) Constable Robinson indicated in his typed report, prepared five days after the incident (November 1st) that he had overheard a nurse state that the results of the urine test indicated an ethanol level of 47 millimoles; (v) This November 1st report indicates that after overhearing this comment Constable Robinson looked towards the nurse who again repeated this test result and that the nurse was “surprised” with this result given the sound of her voice; (vi) After hearing this information, Constable Robinson did not determine the identity of the nurse or nurses who were at the nursing station at the time he overheard the nurse speaking about the urine test results; (vii) Constable Robinson was convicted of discreditable conduct, pursuant to the Police Services Act, on January 24, 2013 which resulted in Constable Robinson being demoted in rank from 1st class police constable to the rank and salary of a 2nd class police constable for a period of four months; (viii) The conviction related to Constable Robinson fleeing the scene of a single vehicle motor vehicle collision which was then followed by Constable Robinson intentionally discarding police issue equipment in the garbage.

[19] These areas may be examined in the cross-examination of sub-affiant Constable Robinson.

[20] I am persuaded that there is a basis to permit cross-examination of the affiant and sub-affiants so that this court is not left to speculate what was said to the issuing Justice of the Peace. If no cross-examination is permitted, then the information to obtain may be taken at face value and on its face there is considerable room to conclude that there was a shortfall of disclosure to the Justice of the Peace such that an improper procedure was conducted. Such a conclusion would then open the door for submissions by the Applicant to argue that the evidence was obtained unlawfully and should be excluded.

[21] There is a foundation by Defence that the information to obtain search warrants did not provide full and focused information to the judicial officer. Such should be explored. The sub-affiant who is important to the investigation is Constable Robinson. There is a McNeil Report to consider because he is an integral part of this investigation. If he were on the fringes of the investigation, there might be a different consideration.

[22] As Garofoli, [1990] 2 S.C.R. 1421, laid out, a defendant should have the opportunity to make a full defence to the accusations she faces. If information has been withheld or distorted, it impedes on her ability to meet the charges. At this stage, the cross-examination of officers will provide information that is focused on the warrant foundation or the lack of it. Should answers lead to findings that the process was conducted properly, the warrant will stand on its face. If there are shortfalls leading to editing the information to obtain, then the remaining information will be available for consideration whether the Justice of the Peace had information upon which she could have issued the search warrant in question.

[23] Such cross-examination of the officers here has a reasonable likelihood of assisting the court as considered by the Supreme Court of Canada in R. v. Pires & Lising, 2005 SCC 66.

Justice B.A. Glass Released: May 8, 2017