Court File and Parties

COURT FILE NO.: 13856/15 DATE: 2017-05-31 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: May 8,9, 10 & 11/ 2017

Justice B.A. Glass

Defence Garofoli Charter Application Sections 7, 8, 10(a) and 10(b) and 24(2) of the Charter of Rights & Freedoms

[1] The Garofoli application resulted in an order permitting the cross-examination of the affiant and sub-affiants followed by submissions to exclude the statement of Ms. Campbell as well as the use of blood/alcohol concentration analysis. The starting point had been a search warrant facially valid, but with answers on the cross-examination of the officers, the Defendant was afforded the opportunity to look deeper at the document.

[2] The Defence position amounts to stating that an investigating police service cannot have an unrestrained ride at gathering evidence. The evidence was obtained unlawfully so that the blood/alcohol readings should be kept out of the trial.

[3] There were oral statements to police while at hospital. No caution was presented to the Defendant, but at that time the officers had not arrested her nor was she a suspect. That was on October 27, 2013. After Ms. Campbell was released from the hospital, the police tried to contact her for an interview but were unable to do so. At the hospital, the police had asked the Defendant for an accident report as one would give pursuant to section 199 of the Highway Traffic Act.

[4] On November 13, 2013, Ms. Campbell provided a typed statement pursuant to the Highway Traffic Act. No caution was provided. She simply typed it on her computer and arranged for her father to deliver it to the police station.

Issues

[5] With statements given to the police, voluntariness is not an issue at this application. Rather, the issue regarding these statements focuses on whether there has been a Charter infringement established on a balance of probabilities by the Defence.

[6] Was the prepared statement delivered by Ms. Campbell to the police within the requirements of section 199 of the Highway Traffic Act?

[7] Was the blood alcohol concentration evidence illegally obtained?

[8] Are there parts of the information to obtain affidavit that should be edited and if so, does that impact on the survival of the warrants?

[9] Are there Charter infringements pursuant to sections 7 and 8 and if so, what is the remedy?

Analysis

[10] In R. v. White, [1999] S.C.J. No. 28, the Supreme Court of Canada looked at an accident reporting statement given by a driver whereby a driver at the time of the accident provided a report holding an honest and reasonably held belief that she was required by law to report to the person to whom the report was given. This was referenced at paragraph 75 of White. The statement could not be introduced against the person at trial in such circumstances. And also, the Ontario Court of Appeal at paragraph 29 in R. v. Soules, 2011 ONCA 429, made a similar observation.

[11] However, the Crown submits that insofar as the Highway Traffic Act statements are concerned, as they relate to information to obtain a search warrant, the Soules decision does not apply. In R. v. Orbanski, 2005 SCC 37, the Supreme Court had determined that the police could use questions for the purpose of forming grounds with roadside testing for alcohol. The Crown submitted that the Paterson decision, 2017 SCC 15, [2017] S.C.J. No. 15, had taken Soules out of the realm of consideration, but I do not so read that to be the case. The Ontario Court of Appeal had distinguished Orbanski when determining the Soules decision. I conclude that the reasoning of Soules is applicable here.

[12] Section 199 of the Highway Traffic Act requires the driver to report the accident forthwith to the nearest police officer when there are personal injuries or property damage in excess of $1,000.

[13] With Ms. Campbell, she provided a typed statement to the police more than 2 weeks after the accident. The Crown position is that this statement is outside the purview of section 199. She prepared it and delivered it. She ought not to be able to suggest that the police acted improperly when they came into possession of her statement.

[14] The statement resulted from questions by the police when the Defendant was not detained. That removes s. 10(b) Charter from the equation because she was not detained or charged with any offence. However, there is still a live issue about whether the statement was compelled pursuant to section 199 of the Highway Traffic Act.

[15] Ms. Campbell testified that she felt compelled to provide a report when the officers spoke about it. She provided oral answers and when the officers pursued more detail, she provided a printed report again because she thought she had to do so. The four statements in question are all inter-related and fall within the ambit of section 199 of the Highway Traffic Act.

[16] I am persuaded that Brynn Campbell felt compelled to provide to provide her statements. Their reception by police is excluded by virtue of the White and Soules decisions and section 7 of the Charter.

[17] The Defendant had refused consent to have blood taken or to have a needle inserted into her both with the EMS personnel and at the Lakeridge Hospital Oshawa. She and both her parents testified that she had a phobia about needles since early childhood. Taking her blood was a deliberate over-ride of her feelings. The Defendant’s mother, Susan Campbell, and her father, Douglas Campbell told the court of the Defendant’s phobia for needles. When blood was being taken at Lakeridge Hospital Oshawa, Douglas said he heard his daughter screaming not to have a needle. There were four nurses present when this occurred. That is made into an important follow-up factor when the nursing staff became police agents, both in gathering blood evidence and in providing information to the police about blood/alcohol concentration levels.

[18] I conclude that the evidence of alcohol readings provided by the nursing staff was illegally obtained and delivered to the police without the consent of the Defendant who had refused consent to blood being taken or to releasing information about her that was private. The nurse provided the information to Constable Robinson after he asked about her readings. It appears that after the officer asked for the readings, four nurses appeared at the room of the Defendant and they simply took the blood. The nurse provided the information to the officer without any authority to do so. That made the evidence illegally disclosed and it was illegally obtained by the nurses as agents of the state.

[19] The illegally obtained and disclosed evidence was the product of intrusion of the body of Ms. Campbell contrary to sections 7 and 8 of the Charter.

[20] In effect, the police had the answers and then justified their actions after-the-fact by getting a warrant.

[21] The section 8 violation was also a section 7 violation. It will not be admissible pursuant to section 24(2) of the Charter. Considering the Grant analysis, 2009 SCC 32, [2009] S.C.J. No 32, this was a serious intrusion of the person of the Defendant and was a serious Charter intrusion so that its introduction into the trial would convey to others that state intrusion will only be given lip service. Secondly, when considering how much of an impact on a person the intrusion might make, one must see that the Charter infringement is major for an accused person. Thirdly, when consideration is given to society’s interest in the case being decided on its merits, a conclusion must be that this is an example where the evidence being introduced is not one of those cases in which society should over-ride the individual.

[22] The information to obtain is to be excised of all information about what the nurse disclosed to Constable Robinson. That includes the blood and urine evidence as well. Further, Ms. Campbell’s statement, given under compulsion, regarding the accident and any consumption of alcohol is to be excised from the information to obtain. That means that the Justice of the Peace was not provided with evidence that could justify seizing the blood samples and urine readings at the hospital. There was no evidence given to the Justice of the Peace about indicia of impairment. In effect, the warrant was based on nothing and was granting the police the chance to have something without a foundation for such a request.

[23] There was a reference to a Crime Stopper’s tip in the information to obtain. There was no evidence confirming the information on the tip. It amounts to an unsubstantiated rumour from someone. The tip purports that the tipster knew the Defendant was impaired and yet the observations of the ambulance personnel, the doctor and the police all indicate no indicia of impairment.

[24] The Justice of the Peace was left with an information to obtain that states there was a fatal accident on a divided road in Oshawa in which the deceased was travelling in the wrong direction at 2:30 a.m. and collided with the vehicle of the Defendant. Without evidence of alcohol impairment or indicia of impairment, the information to obtain is simply stating that a tragic accident occurred resulting in the death of an 83-year old woman and no explanation for her travelling the wrong way on a divided roadway. If the affiant were to have presented only that information, there would be no foundation for issuing a warrant to seize the blood vials at the hospital or the hospital records. No reasonable and probable grounds were shown to the Justice of the Peace.

[25] That results in the evidence being obtained without a proper foundation.

[26] Since the Charter infringements in obtaining the blood and statements of Ms. Campbell fall within the considerations of R. v. Grant, the result is that there will be an order excluding the evidence pursuant to section 24(2) Charter.

Justice B.A. Glass Released: May 31, 2017