Court File and Parties

Bracebridge Court File No.: CR-15-0021 Delivered Orally: 2017-05-23 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Christie Ann Culotta, Applicant

Counsel: T. Carlton, for the Crown D. Derstine, for the Applicant

Heard: May 15, 16 and 17, 2017

Ruling

MULLIGAN J.:

[1] Both Crown and defence brought pre-trial applications with respect to a jury trial anticipated to begin May 23, 2017. The applicant, Christie Culotta, faces five counts on an indictment. Two of the counts relate to operating a vessel while impaired by alcohol causing bodily harm to two individuals. Two further counts relate to operating a vessel having consumed alcohol when the concentration in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, with respect to the same two individuals.

[2] The final counts relate to the operation of a vessel in a manner that was dangerous, thereby causing bodily harm to the same two individuals.

[3] The Crown brings two applications seeking a ruling that certain utterances and a written statement were voluntary and thereby admissible as part of the Crown’s evidence. In its applications, the defence seeks an order dismissing the Crown’s request. The orders sought by the defence and can be summarized as follows:

(i) an order dismissing the Crown’s request to utilize Ms. Culotta’s statement as involuntary and therefore in breach of her right to silence pursuant to s. 7 of the Charter;

(ii) an order declaring that Ms. Culotta’s utterances were obtained in breach of her sections 7, 9, 10(a) and 10(b) Charter rights, and therefore any evidence relating to or derived from these statements ought to be excluded pursuant to s. 24(2) of the Charter; and

(iii) an order declaring that Ms. Culotta’s sections 8, 9 and 10 rights were breached by the seizure of her blood and medical records, together with an order excluding all evidence derived from these breaches pursuant to s. 24(2) of the Charter.

[4] By way of agreement with counsel, the evidence on this application consisted of the preliminary hearing evidence of the emergency room physician, Dr. Karasmanis, lab technician, Kim Clark, and PC John Tunney. That evidence was supplemented by further viva voce evidence at the hearing from Kim Clark and PC Tunney. The Crown also called Sgt. Mike Tennent and PC Kyle Maki to give evidence about the events in question. Other documents were filed as exhibits on the hearing, including the s. 487 warrant and a subsequent toxicologist report.

[5] The defence elected to call evidence at this pre-trial application. Victor Culotta, the father of the applicant, gave evidence about his involvement on the lake during the night in question, as well as his involvement at the hospital where his daughter, the applicant, and others had been admitted for treatment.

[6] A brief overview about the events in question will provide context for the discussion that follows.

[7] Defence counsel provided a timeline and commentary in his factum. The summary of the key dates and times follows:

DATE: August 1, 2013

2:00 a.m. Report of a boating accident

2:07 – 2:45 a.m. Passengers transported to the staging area

3:03 a.m. P.C. Tunney enters the ambulance where Christie Culotta and others are being treated

3:17 a.m. Christie Culotta is arrested for impaired operation of a vessel

3:40 a.m. Ambulance and Officer Tunney arrive at the hospital

3:46 a.m. Officer Tunney begins to provide rights to counsel, caution and breath demand

3:50 a.m. Decision made not to request a breath sample due to injuries. P.C. Tunney provided CFS seals

5:18 a.m. Lab technician draws blood samples from Christie Culotta

5:20 a.m. Lab technician and P.C. Tunney walk back to the laboratory

5:23 a.m. P.C. Tunney places seals onto vials of blood

5:30 a.m. P.C. Tunney informs Christie Culotta that she was released unconditionally

5:40 – 6:02 a.m. P.C. Tunney takes a written statement from Ms. Culotta

8:00 a.m. P.C. Tunney makes all entries in his notebook as to the events in question

DATE: AUGUST 23, 2013

P.C. Tunney applies for and obtains a search warrant from a Justice of the Peace

DATE: OCTOBER 18, 2013

P.C. Tunney receives BAC readings

DATE: OCTOBER 19, 2013

P.C. Tunney arrests Christie Culotta, released on a Promise to Appear

[8] Christie Culotta was operating an open-hulled motorboat on Lake Muskoka. There were four other young women with her as passengers. Around 2:00 a.m., while returning by boat to her parents’ cottage, she struck a rock near the island cottage. The collision was violent enough to cause three of the occupants to be ejected from the vessel. The occupants suffered injuries. One passenger remained on the rock with what appeared to be a serious back injury. She would later be removed on a backboard by first responders and transported on a fireboat and then an ambulance to the hospital. The others made their way to a nearby cottage and called 911. Victor Culotta also got a call. He was at his cottage with his wife, Kelly. He was very familiar with the lake, having boated on it since 1964. He boated to the cottage where the young women had assembled. He saw his daughter, Christie, and one of the other young women almost immediately. He observed that they were in a mess and crying. His wife went to the cottage to attend to his other daughter and one of the other young women. He then began one of several trips to a staging area at Beaumaris Marina, where ambulance and police were beginning to arrive. He spoke about the weather at that time as about the worst he had ever seen. The sky was overcast, it was raining heavily, and he was soaked within five minutes. Other than a flashing light, there was very little that could be seen on the lake. PC Maki, who was one of the first responding officers to the marina, described the rain as a torrential downpour.

[9] After Mr. Culotta turned over the first two young women to emergency personnel standing by at the marina, he returned to the scene with a police officer and two emergency response personnel. These responders attended to the young women who required critical care. Mr. Culotta made his second trip to the staging area at the marina with his daughter, Christie, and one of the young women. He turned them over to emergency personnel and returned to the scene to pick up his wife, Kelly, however, she had already departed with the young woman who had been evacuated on the fireboat.

[10] Because he and his wife were both soaked, they returned to their cottage, had a change of clothes, and returned in a covered boat to their car and then to the hospital.

[11] Three O.P.P. officers on shift that evening attended the scene. PC Tunney became the lead officer with respect to the investigation. PC Drake and PC Maki also assisted at the scene.

[12] By all accounts, the scene at the staging area at Beaumaris Marine was chaotic. PC Maki spoke about the torrential downpour, the commotion at the marina, including screaming females, and the arrival of ambulances and police officers.

[13] PC Maki had a brief opportunity to speak to Christie Culotta at the scene, and he later saw her at the hospital but did not have a conversation with her there. He noted her visible facial injuries. She spoke to him about the condition of the other females still at the accident scene. He arrived at the accident scene at about 2:30 a.m. Because of the extremely wet conditions, he couldn’t make notes immediately, but found time to make notes at 3:30 a.m. when he was in a dry location.

[14] PC Tunney received a call to attend at the staging area at Beaumaris Marina around 2:30, and arrived at 2:46. The ambulance was already there. He described the scene as chaos, with paramedics assisting young women in the pouring rain conditions. At approximately 3:00 a.m., he got into an ambulance which was already loaded with the applicant, Christie Culotta, her sister, Annie Culotta, and her cousin Nicky. Two ambulance attendants were also in the ambulance. He stepped into the ambulance and began asking questions. He was at the back door of the ambulance. Nicky was on a stretcher in the middle of the ambulance, and Christie Culotta and Annie Culotta were sitting on chairs at the front of the ambulance. He asked brief questions and received brief answers which I will discuss more fully in these reasons. He noticed an odour of alcohol from within the ambulance. He then arrested Christie Culotta. Because of the need for medical attention and the fact that all of the young women would be going to the hospital, he deferred reading her rights to counsel, a caution and a breath demand on the basis that he could do this at the hospital during a break in her treatment.

[15] The ambulance then left the scene at about 3:26 a.m. and PC Tunney followed in his cruiser, arriving at the hospital at about 3:40 a.m.

[16] The three young women and others that followed later, received the treatment deemed necessary by the emergency room physician.

[17] Christie Culotta was seen to have bruises or abrasions on her forehead and a split lip. She received a chest x-ray, provided routine blood samples to the lab technician, and received a suture to her lip.

[18] Shortly after her admission when there was an opportunity, PC Tunney read her her right to counsel with respect to the charge he had already arrested her for. His evidence was that she responded “yes” when he asked if she understood, and she said “no” when asked if she wanted to call a lawyer. There was some comment about a lawyer known to her parents and I will discuss this more fully later. Moments later, he read a caution to her. He asked her if she understood and she responded “yes”. He then made a breath demand and she indicated “yes” when asked if she understood. According to his notes, she responded, “Do I get to blow into a machine to prove I am not drunk?”

[19] Meanwhile, he spoke to his shift sergeant, Sgt. Tennent, who had arrived at the hospital. After discussion, it appeared apparent that Ms. Culotta could not blow into an intoxilyzer due to her facial injuries, even though a breathalyzer officer was available at the hospital in the event that a demand was made.

[20] Instead, the officers developed a plan to seal vials of blood, which if sealed, could later be the subject of a seizure warrant from the hospital. Sgt. Tennent provided CFS seals to PC Tunney for that purpose at 3:50 a.m.

[21] Earlier, PC Tunney attempted to call Christie Culotta’s father to get the name of the family lawyer, however, due to bad weather or other circumstances, the connection was lost. He next met the parents at the hospital at about 4:50 a.m. The parents had some knowledge about the condition of their daughters, having seen them at the scene, but were also concerned about the other young women who had more serious injuries. They were attempting to reach their parents. Mr. Culotta stayed with his daughter, Christie Culotta. Mrs. Culotta stayed with her daughter, Annie.

[22] Kim Clark was the lab technician on duty that night at the hospital. She had been called in in anticipation of tests that the emergency room doctor may order with respect to this influx of victims from the boating accident. She has worked at the hospital for 16 years and has drawn blood for diagnostic tests based on doctors’ orders for thousands of patients.

[23] She had no distinct memory of the details of the night in question, but working from records, indicated that she drew blood from Christie Culotta at 5:18, based on a lab requisition from Dr. Karasmanis. She knew there had been a boating accident and this was a trauma case. She determined that four vials were needed for the four tests required by the doctor. She indicated in her experience that she would sometimes draw additional vials of blood in a trauma situation, and it was a decision that she would make herself in case the doctor required further tests. This would avoid disturbing the patient and requesting a second blood sample later.

[24] The blood was drawn at 5:18 a.m. PC Tunney was at the doorway of the treatment room while the blood was drawn from Christie Culotta by the lab technician. He accompanied the lab technician to the lab and placed seals on two vials in addition to the four that Kim Clark had drawn for testing purposes. These sealed vials were then placed on a shelf in the fridge marked “For police use”. Her evidence was very clear that vials with police seals could not be subsequently used by her for testing. I pause to note that both Officer Tennent and PC Tunney were under the misunderstanding that the lab technician could break these seals and use these samples for testing if needed.

[25] Kim Clark, the technician, had no specific memory of any discussion with PC Tunney during the taking of blood or the sealing of blood samples that occurred in the lab. Her evidence at the preliminary inquiry with respect to the purpose for extra vials is illustrated by the following question and answer:

Q. And you drew another one and then put a seal on it a minute later, to hold for police? A. I didn’t draw it for the police. I drew it for medical purposes, but that other two got a seal put on them, assuming – it did accord to my record.

[26] In cross-examination at this hearing, she had no specific memory of what discussion there may have been with PC Tunney.

[27] However, PC Tunney’s evidence leads to an inference, in my view, that extra blood was drawn for police purposes. PC Tunney was present when the blood was drawn from Christie Culotta. He then accompanied the lab technician to the lab and immediately placed seals on two vials of blood, in addition to the four vials that the technician had taken for medical testing. The vials were then placed on a shelf marked for police purposes. As to discussions between PC Tunney and the technician, he was asked the following in cross-examination:

Q. Let me ask you this. Did you have a conversation with Ms. Kim Clark before she walked into that room – before she walked into that room to take blood? A. Before she walked into… I must have had some sort of conversation with her, but I just don’t recall. Q. So that we’re clear, so you must have had some sort of conversation with her before she went in to take the blood? A. Just asking her if I can put the CFS seals on the vials of blood. Q. Okay, so that was before she took the blood? A. I believe so.

[28] After the blood was sealed, PC Tunney returned to Christie Culotta, who was with her father, medical treatment having been apparently completed. He informed Ms. Culotta that she was being released unconditionally from police custody pending further investigation.

[29] He indicated to her that she was no longer in custody with respect to the impaired boating charge. He then indicated he wanted to take a statement from her and then again read to her from his wallet card her rights to counsel. This time, the charges related to impaired boating causing bodily harm, so her jeopardy had increased. She indicated that she did not want to call a lawyer. Her father, Victor Culotta was present during this conversation. He again cautioned her and she indicated that she understood. The officer said he could have facilitated rights to counsel for her to call from a private room if she indicated that was her wish. He took a statement between 5:40 and 6:02 a.m. He thought she was doing well. She was speaking clearly and there was no slur. He took a statement and attempted to write it down verbatim. The statement was in his handwriting. She had an opportunity to read it and she signed the statement. It was entered as an exhibit.

[30] Later that month, PC Tunney prepared for a search warrant and submitted the application to a justice of the peace, together with an information to obtain on August 23, 2013. The judicial officer issued a search warrant enabling the police to seize the vials of blood from the hospital for testing by the Centre of Forensic Sciences. The seizure of medical records was also authorized by the search warrant. PC Tunney received those records.

[31] The blood samples were subsequently seized and tested, and PC Tunney received a report from a toxicologist on October 18, 2013. He requested that Christie Culotta attend the station to be placed under arrest for the charges now before the court. On October 19, 2013, Christie Culotta was charged for the offences before the court and released on a Promise to Appear.

[32] I intend to review the issues before the court in the order established by the Crown in its response identifying seven separate issues. In considering those issues, I will consider the evidence and the submissions of counsel with respect to the voluntariness applications by the Crown and the Charter applications by the defence.

[33] I would first like to make some observations about the investigation conducted by PC Tunney. In his evidence, he acknowledged that he was a fourth class constable at the time of this investigation with ten months’ experience. Although his platoon sergeant was available and other more senior officers were at the scene, he became the officer in charge. Looking back on this incident and with the benefit of hindsight, he told the court, “Maybe if it was today, now with the experience, that I have now, yes, but then I felt in my mind, with the training I had to-date, that I had enough grounds.”

Issue #1: The Utterances Made in the Ambulance

[34] When PC Tunney arrived at the scene and entered the ambulance, he arrived at a chaotic scene. There was torrential rain, it was clear that several of the occupants had been injured, some quite seriously. When he entered the ambulance, he asked some questions and received utterances from Christie Culotta that she had been driving the vessel and had consumed some alcoholic beverages. Her answer was, “One or two Vodka Smirnoff and tonics before – before dinner, which was a long time ago.” He then indicated in his testimony that he formed reasonable and probable grounds and placed her under arrest for impaired operation of a vessel. There were no further statements made by her after the arrest until her written statement later at the hospital.

[35] The Crown seeks to have these utterances declared voluntary. The defence seeks to have them excluded as a breach of her s. 10(b) rights.

[36] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the Supreme Court of Canada provided the following guidance with respect to detention:

[23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purpose of the Charter, even where a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police.

[37] In R. v. Hebert, 1990 SCC 118, [1990] 2 S.C.R. 151, the Supreme Court of Canada noted at para. 74, “Nor does the Charter extend the right to counsel to pre-detention investigations.”

[38] In R. v. MacMillan, 2013 ONCA 109, [2013] O.J. No. 727, Rosenberg J.A., speaking for the Court in a case involving impaired operation of a vessel causing death, stated at para. 38, “Since the respondent was not detained until the demand was made, her rights under sections 9 and 10(b) were not infringed in the period before the demand was made.”

[39] On the facts before me, I am not satisfied that the applicant was detained by the police while she was in the ambulance prior to her arrest. If she was detained, it was for legitimate medical reasons and the need for emergency personnel to take her to the hospital for medical assessment. It was only after the statements to the officer pursuant to his initial inquiries that she was arrested.

[40] I am satisfied beyond a reasonable doubt that these utterances were made voluntarily and no breach of her Charter rights occurred with respect to these utterances.

Issue #2: A Written Statement of Christie Culotta

[41] The Crown seeks to have Christie Culotta’s written statement declared voluntary. The applicant seeks to have the utterances excluded as a breach of her 10(a) and 10(b) rights and made under oppressive circumstances.

[42] The statement was prepared by PC Tunney based on verbatim questions and answers given to him while he was in the hospital with her. He did not request or take any steps to have the conversation audio-recorded or invite Ms. Culotta to the station to give a video-recorded statement. She was given an opportunity to read the written statement and signed it in the presence of PC Tunney. PC Tunney’s evidence was that he cautioned her and gave her her rights to counsel. He had given her similar rights and cautions with respect to the original charge of impaired operation simpliciter. Her jeopardy was increasing with respect to the potential pending charges, so it was imperative that further cautions and rights to counsel be given. I accept that he did so and I accept his evidence that she understood her rights and declined to contact a lawyer, even the family lawyer whose name had been provided, or duty counsel. The officer stated he could have facilitated such a call from the hospital in a private setting.

[43] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada considered voluntariness under four categories:

(i) the existence of threats or promises; (ii) lack of an operating mind; (iii) oppressive circumstances; and (iv) police trickery.

The Court made these overarching comments in para. 69:

Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[44] In R. v. Moore-McFarlane (2001), 2001 ONCA 6363, 56 O.R. (3d) 737, the Ontario Court of Appeal dealt with the issue of the importance of recording statements. As the Court stated at para. 64:

I agree that there is no absolute rule requiring the recording of statements. It is clear from the analysis in both Hodgson and Oickle that the inquiry into voluntariness is contextual in nature and that all relevant circumstances must be considered. Iacobucci J. states so expressly in Oickle in the following words:

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over and under inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[45] I am satisfied that in all of the circumstances, the statement was voluntary. With respect to the Oickle factors, there were no threats or promises. Ms. Culotta was no longer under arrest but was still subject to a pending investigation for charges considered more serious. There is no issue of lack of operating mind. The medical treatment had been completed and she would later leave the hospital with her parents. The circumstances were not oppressive. She sat with the officer in the emergency area. Her father was present at least for part of the interview. It lasted for 20 minutes or more, and she had an opportunity to read over the questions and answers before signing it. There is no evidence of police trickery.

Issue #3: Sealing of Blood Samples

[46] I have already reviewed some of the circumstances surrounding the sealing of the blood samples.

[47] It is the defence position that the lab technician acted as an agent for the police and therefore the drawing of blood for police purposes was an unlawful and warrantless seizure pursuant to s. 8 of the Charter. There was no specific consent from the applicant to have blood drawn for police purposes and the breach cannot be cured by a subsequently obtained warrant authorizing its seizure.

[48] In R. v. Taylor, 2014 SCC 50, [2014] SCJ 50, as Abella J. noted for the court at para. 34:

An individual who enters a hospital to receive medical treatment is not in a Charter- free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available given the circumstances.

[49] In Taylor, it was very clear that the accused wished access to a lawyer but no such access was provided and blood samples were taken at the request of the police.

[50] Justice Abella concluded at para. 36:

I would note only that the police should not be able to circumvent the duty to implement an arrested individual’s s. 10(b) rights by attempting to cure any tainted evidence with a warrant authorizing its seizure.

[51] In R. v. Colarusso, 1994 SCC 134, [1994] 1 S.C.R. 20, the Supreme Court of Canada reviewed loose arrangements between hospitals and police about seizure of blood samples. On the facts of that case, the majority noted:

The presence of the police officer in the emergency room in such circumstances can only serve to undermine the physician-patient relationship, as the accused would likely interpret these facts that the medical staff was operating in conjunction with the police investigation. Such a scenario would have catastrophic results if an accused resisted essential treatment for fear it might incriminate him in future criminal proceedings. Although I have not categorized the assistance of the police officer at this early stage as a seizure, I would emphasize that such complicity is at best unwise and should be avoided at all times unless the assistance of the police officer is necessary in order to give essential medical treatment because of exigent circumstances. In this situation, the presence of the officer was unwarranted, as the hospital staff could have obtained a sample themselves. The following words used in Dyment at p.434 are especially apt here:

Under these circumstances, the courts must be especially alert to prevent undue incursions into the private lives of individuals by loose arrangements between hospital personnel and law enforcement officers. The Charter, it will be remembered, guarantees the right to be secure against unreasonable searches and seizures.

[52] In this case, the police formed an early plan to attempt to seal blood samples which could be made the subject of a later warrant to seize them. The investigating officer was given CFS seals for that purpose. The investigating officer had several options available to him. He could have made a blood demand under the provisions of s. 253(3) of the Criminal Code. He could have sought Ms. Culotta’s consent to request blood samples for police investigative purposes. He could have informed the applicant when he released her that he had sealed two vials of her blood. She was in a hospital setting. A lab technician was available. A physician was available to provide oversight as required in subsection (4) which provides:

Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.

[53] Although the lab technician indicated that she drew blood for medical purposes, she drew more blood than was required for the tests ordered by the emergency room physician. Although her practice was to, in some cases, draw additional vials for future testing, the additional vials drawn here were almost immediately sealed by the officer. There is no evidence that she returned to see the patient to take additional samples in the event that further medical tests were required or ordered. Although she has no specific memory of the details of the interaction with the police, the evidence of PC Tunney was quite clear that he raised the issue with her about putting seals on the vials of blood before she took the blood from Ms. Culotta.

[54] In my view, in all the circumstances here, I am satisfied that the sealing of the blood samples amounted to an immediate seizure of a bodily sample in clear violation of the applicant’s s. 8 Charter right.

Section 24(2) Charter Analysis

[55] The Supreme Court of Canada provided a contextual approach to a consideration of s. 24(2) of the Charter with respect to the admissibility of evidence. As Watt J.A. stated in R. v. Tsekouras, 2017 ONCA 290, at para. 76:

We determine the admissibility of constitutionally tainted evidence under s. 24(2) by considering all of the circumstances and pursuing three lines of inquiry. We examine:

• the seriousness of the Charter- infringing state conduct; • the impact of the breach on the Charter protected interests of the accused; and • society’s interest in an adjudication on the merits.

[Citations omitted.]

[56] In R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504, Doherty J.A. considered the three Grant factors and stated at para. 62:

The third inquiry, society’s interest in an adjudication on the merits, pulls in the opposite direction, toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case. [Citations omitted.]

However, Justice Doherty went on to state at para. 63:

In practical terms, the third inquiry becomes important when one, but not both of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom them if ever, tip the balance in favour of admissibility… Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.]

[57] In my view, on the evidence here, the sealing of additional blood vials amounted to serious state conduct infringing upon the applicant’s Charter rights. The lab technician, charged with obtaining blood samples for medical purposes, was co-opted into taking samples for police purposes at the urging of the investigating officer.

[58] The taking of blood samples in this manner had an impact on the applicant’s Charter protected interests. In a hospital setting and while seeking medical treatment, she took no issue with the lab technician taking samples for medical purposes. She did not consent to this form of seizure of a bodily substance in breach of her clear s. 8 rights under the Charter.

[59] There is no doubt that society has an interest in having cases adjudicated on the merits. No doubt the lab report and analysis is an important aspect of the Crown’s case. Nevertheless, I am satisfied that the blood samples should be excluded based on the strength of the first two inquiries.

Issue #4: The Seizure of Hospital Records for the Defendant

[60] I will consider this issue more fully in these reasons when I consider Issue #6: Grounds for the Section 487 Warrant.

Issue #5: Reasonable Grounds for the Arrest at 03:17 Hours

[61] The Crown submits that PC Tunney had reasonable and probable grounds to arrest Christie Culotta within the ambulance at the marina staging area. The defence submits that the officer lacked reasonable and probable grounds and that neither subjective nor objective grounds existed to justify PC Tunney’s arrest of the applicant. He arrested her shortly after stepping into the back of the ambulance. In his notebook, completed several hours after the arrest, he noted the following under the heading “RPG”:

• Admitted being driver
• Admitted consuming alcoholic beverages
• Smell alcohol
• Two witnesses identifying Christie as the driver
• Crash the boat into rocks

[62] Earlier in his notebook, he noted that the applicant’s eyes were watery, but he added:

I’m uncertain if from the injuries, alcohol, or possibly the heavy rainfall. Unable to get closer to Christie to ask more questions due to receiving medical attention from paramedics and number of people in the ambulance.

[63] The officer also noted that Ms. Culotta may have slurred the word “sir” when providing brief answers to him. In cross-examination, the officer was probed on his notes about reasonable and probable grounds. Notes he made at 8:00 a.m., about five hours after the arrest in question. He acknowledged smelling alcohol within the ambulance but did not know who it was emanating from. He was not physically close to Christie Culotta. He was in the back of the ambulance and she was sitting at the front. There was a stretcher and two paramedics between them. He did not know the reason for the watery eyes, whether it was due to alcohol, rain, or crying. He noted her facial injuries and split lip. In cross-examination for the first time, he used the word “alarming” with respect to Ms. Culotta’s slur of the word “sir”. The word “alarming” did not appear in his notes, nor did it come up in his testimony at the preliminary hearing. He did have some evidence that she was the driver and that the boat had crashed on rocks with enough force to eject some of the passengers. He also had her admission that she had consumed alcoholic beverages, but at dinner, hours earlier.

[64] The officer then had a further opportunity to see and interact with Ms. Culotta at the hospital. He observed the lab technician taking blood. He spoke at length with Christie Culotta and took a written statement after he had released her unconditionally.

[65] In R. v. Bernshaw, 1995 SCC 150, [1995] 1 S.C.R. 254, Sopinka J. provided the following principles about reasonable and probable grounds at para. 48:

The Criminal Code provides that where a police officer believes on reasonable and probable grounds that a person has committed an offence pursuant to s. 253 of the Code, the police officer may demand a breathalyzer. The existence of reasonable and probable grounds entails both an objective and subjective component. That is, s. 254(3) of the Code requires the police officer subjectively to have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief.

[66] In considering this test, the Ontario Court of Appeal considered the issue in R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453. As the Court stated at para. 38:

Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence. The officer’s belief must be supported by objective facts. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest.

[67] In R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108, the Supreme Court of Canada agreed with the trial judge’s decision that the officer had reasonable and probable grounds. As the Court stated on the facts of that case at para. 15:

He [the trial judge] also correctly considered the relevant testimony of the arresting officer about the circumstances of the accident, the smell of alcohol on Mr. Rhyason’s breath, other minor signs of impairment, such as bloodshot eyes and a blank stare, and Mr. Rhyason’s admission that he had driven the car involved in the accident.

But the Court signalled a note of caution at para. 19:

This is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds or conversely, that it never does. What is important is that determining whether there are reasonable and probable grounds is a fact-based exercise dependent upon the circumstances of the case.

[68] The circumstances that this officer faced could have raised a suspicion of alcohol impairment warranting further investigation. However, in my view, the officer lacked reasonable and probable grounds to make an immediate arrest of Ms. Culotta. PC Tunney had only been an officer for about ten months. He was a probationary officer. In cross-examination reflecting on the night in question, he stated, “Maybe if it was today, now with the experience, that I have now, yes, but then I felt in my mind, with the training I had to-date, that I had enough grounds.”

[69] Without effecting immediate arrest, the officer would have had an opportunity to pursue his investigation. Christie Culotta was being taken to the hospital for treatment. While at the hospital, he spoke to her directly and gave her cautions and right to counsel. But he made no further notes or entries with respect to any indicia of impairment when he spoke to her then or later when he took a statement. He later released her unconditionally with the knowledge, not shared with her, that he had sealed two vials of blood for possible seizure and testing.

[70] The unlawful arrest meant that she was detained in custody until subsequently released by PC Tunney. It was within this detention period that blood was obtained from her and sealed. I have already dealt with the blood so taken.

[71] But I pause to note that this is not a case of an egregious detention where a person is kept in a police car or a police cell. Here, she was taken to the hospital, not by the police but by ambulance for proper medical assessment and treatment. PC Tunney treated her with respect and dignity, and allowed proper medical treatment to be offered to her as needed. She received a suture to her lip, a chest x-ray to make sure there were no fractures as a result of the accident, and blood tests as ordered by the emergency room physician. Even after she was released by the police, she remained in the hospital with her family while others received treatment. When he spoke to her later and obtained a statement her father was present for at least part of the time.

Issue #6: Grounds for the Section 487 Warrant

[72] The s. 487 warrant issued by the justice of the peace enabled the police to seize the blood samples from the hospital for testing and obtain a copy of Christie Culotta’s medical records. I have already dealt with the issue of blood testing. The breach of her Charter rights cannot be overcome by a subsequent judicially authorized warrant to seize blood samples.

[73] I now turn to the medical records. The Crown’s position is that there was an ample basis for the issuance of the warrant based on the affidavit in support from PC Tunney. The defence on the other hand, states at para. 92 of its factum:

Official review of the warrant by this Honourable Court should lead to a finding that it fails to set out a reasonable belief that the respondent committed the offences noted in Appendix B, such a finding is fatal to the validity of the warrant and it should subsequently be quashed.

[74] Consideration of this issue requires the court to review the decision of the judicial officer based on the information before her. As the Court of Appeal stated in R. v. Manders, 2007 ONCA 849, [2007] O.J. No. 4757 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 the sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant. The test is not whether, in the reviewing judge’s opinion, the warrants should have issued, much less whether the reviewing judge would have issued the warrants himself if asked. [Citation omitted.]

[75] Section 487(1) of the Criminal Code provides as follows:

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

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

May at any time issue a warrant authorizing a peace officer …

(d) to search the building receptacle or place for any such thing and to seize it…

[76] A review of the ITO indicates that the officer subsequently conducted much more investigation than his conversations with Christie Culotta. He interviewed a number of witnesses about alcohol consumption prior to the crash. He spoke to Dana Bailey. As he indicated at para. 14 of the ITO:

Dana Bailey provided statements indicating she observed Christie Culotta consume two shots of Vodka Smirnoff out of the bottle and observed Christie Culotta consume at least two unknown brands of beer from brown bottles. Dana Bailey last seen Christie Culotta with a beer in her hand at around 1:30 a.m.

[77] He interview Kelly Culotta, Christie Culotta’s mother, who indicated she saw her daughter consume one Heineken beer at about 7:00 p.m. Another witness, Bridgette Gore was asked if Christie Culotta was drinking with her. She responded, “No, she was drinking with Nicky and I saw her have a drink at supper.”

[78] PC Tunney concluded by stating at para. 57:

I believe on reasonable and probable grounds that the premise described in the Information To Obtain a Search Warrant to this application, will contain the vials of blood and medical records belonging to Christie Ann Culotta pertaining to this incident. I further believe that the information contained above, accompanied by the vials of blood and the results of the analyses of that blood will afford the necessary evidence to prove the charges as set out at Schedule “B” against Christie Ann Culotta.

[79] I am satisfied that there were reasonable grounds as set out in the ITO to authorize the issuance of a search warrant for the medical records of Christie Culotta. Given the wording of s. 487 of the Code and the jurisdiction of the reviewing judge, I am satisfied that there was reliable evidence upon which the justice of the peace could have granted the warrant with respect to the medical records.

[80] For reasons stated earlier in this decision, I would quash the warrant with respect to the blood samples sealed at the hospital and later seized for testing.

Issue #7: Section 24 of the Charter

[81] I have considered s. 24(2) of the Charter with respect to each of the above enumerated issues individually.

Orders Granted

[82] The Crown’s application to have the utterances and the written statement declared voluntary are granted. Consequently the defence applications with respect to these issues are dismissed.

[83] The defence application for an order declaring that the blood seizure and subsequent analysis breached Ms. Culotta’s Charter rights is granted. The defence application to exclude the hospital records is dismissed.

NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.