Her Majesty the Queen v. Louie McDonald

COURT FILE NO.: CR-17-026

DATE: 2018-02-01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Louie McDonald

Counsel: Jeannine Plamondon and Mark Seebaran, Counsel for the Federal Crown André White, Counsel for the Provincial Crown Ian Paul, Counsel for the Accused

HEARD: January 8-10 and January 15-18, 2018

RULING ON VOLUNTARINESS OF STATEMENTS; CHARTER MOTIONS, SECTIONS 7, 8, 9 AND 10 (A) AND (B); WARRANT FOR HOSPITAL RECORDS

LEROY, J.

[1] The pre-trial applications considered in these reasons are focussed on police investigation. The issues center on the admissibility at trial of statements made by the accused, Mr. McDonald and the paramedic. The defence challenges the validity of the warrant for the production of the hospital records compiled during Mr. McDonald’s treatment at the Cornwall Community Hospital.

[2] I will outline the relevant events chronologically. I will depict the parties’ positions on issues, set out the applicable principles and their application as they arise in the chronology.

Statement to Deputy Chief Swamp

[3] Acting Deputy Chief Swamp, herein Swamp, of Akwesasne Police Service was dispatched to the easterly end of Cornwall Island, Ontario at 9:00 a.m. on September 2, 2015. He understood that a Sea-Doo with a couple of young persons had capsized and were in distress. He understood his task was to check on the well-being of the young persons.

[4] On arrival to the scene, he saw two males, one lying down and the other standing. Both were wet. He recognized Mr. McDonald as the prone male. Swamp knew Mr. McDonald from the community. Swamp said he thought he and Mr. McDonald had a good relationship. He approached the standing male. He observed the overturned Sea-Doo in the water approximately 60 – 80 feet from shore. At this point, his understanding of young people involved in recreational use of the Sea-Doo persisted.

[5] The standing male was Mayur Patel.

[6] Swamp asked Mr. Patel what was going on. Swamp observed that Mr. Patel did not appear to comprehend the question. Swamp asked “Where are you going?” Mr. Patel pointed south and said US. Swamp then gestured toward his vehicle, located westerly of the shoreline encounter and walked with Patel to the vehicle.

[7] As that traverse began, Swamp asked Mr. McDonald who was approximately ten feet from him “Is that your Sea-Doo?” He said Mr. McDonald raised his head and replied “Yes.”

[8] Swamp said that to this point he was not suspicious of any crime.

[9] Swamp returned to his vehicle with Mr. Patel. He had Mr. Patel write his name. In the course of so doing, Mr. Patel communicated that he had friends with him and pointed to the water. Swamp said this was the moment he realized there may be bodies in the water.

[10] At that moment, Swamp observed Larry Mitchell and approached him. He said that Mitchell described recent events. Mr. McDonald drove the Sea-Doo with 3 passengers. Swamp recalled that Mitchell described how the Sea-Doo capsized twice and two drowned after the second. Mitchell instructed Swamp where to look for the corpses.

[11] Swamp immediately contacted dispatch to alert the fire department marine unit.

[12] Swamp recalled that the information he received from Larry Mitchell evolved the situation into an investigation.

[13] The defence contests the admissibility of the exchange between Swamp and Mr. McDonald. Mr. Paul agrees that Mr. McDonald was not detained so the Charter does not factor.

[14] The defence position is that when Mr. Patel indicated his destination – gesture to the south and verbalized US to Swamp that objectively ought to have given Swamp reasonable grounds to suspect that Mr. McDonald had committed an offence. The failure by Swamp to caution Mr. McDonald as regards the suspected offence, right to silence and that anything said may be used as evidence is a relevant factor is assessing voluntariness of the response.

[15] The Crown position is that at the moment of this exchange, Swamp was facing a dynamic situation. Mr. McDonald was not a suspect at that moment. The caution is an operating mind component of voluntariness. If there is no detention, the officer can ask and the civilian can decide to respond or not.

Applicable Principles

[16] Historically, the failure of the police to caution a suspect upon their arrest or detention about their right to remain silent was a relevant factor in assessing voluntariness – R. v. Boudreau, 1949 CanLII 26 (SCC), [1949] S.C.R. 262.

[17] Justice Charron in R. v. Singh (2007), 2007 SCC 48, 225 C.C.C.(3d) 103 adopted the approach depicted by Rene Marin in his book, Admissibility of Statements:

“The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave…the presence of the officer where a communication or exchange is taking place. If the answer is arrest or detain the person then the warning should be given.”

[18] At paragraph 36 Justice Charron wrote:

On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test.

[19] Section 9 of the Charter doesn’t dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime

[20] Mr. McDonald was not detained. A reasonable person would not conclude that Mr. McDonald no longer had the freedom to choose whether or not to cooperate. Mr. Paul conceded that point.

[21] In a situation where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. Despite a police request for information or assistance, a bystander is under no legal obligation to comply. This legal proposition must inform the perspective of the reasonable person in the circumstances of the person being questioned – R. v. Suberu 2009 SCC 33, 2009 S.C.C. 33 – para 28-29.

Principles Applied

[22] That exchange is admissible. Swamp had just entered the scene. He said that his context or mind set was that of checking up on a report about kids on a Sea-Doo in trouble. What he saw on arrival would not change that context. Here were two young people, wet and tired on the shore and a capsized Sea-doo just off-shore. One must ask preliminary questions to determine how to proceed. A question about responsibility for the Sea-Doo was an introductory, preliminary question. Until such information was obtained as to a possible criminal offence and who the parties were, no detention or arrest rights were required.

Charter Application to Exclude for Breaches of Charter ss. 7, 8, 9, 10(a) and (b)

[23] Constable Rolfe was dispatched to this matter at 9:11 a.m. Travel to the scene consumed about twelve minutes. She entered the scene at the same time as the first fire department boat. Rolfe’s in-car frontal camera shows Patel, McDonald and Mitchell at the water edge. Swamp and Rolfe joined them. Rolfe and Swamp left the three at the shoreline. McDonald and Mitchell directed the boat, presumably to the area in the water where the two men drowned.

[24] The marine unit pulled the first body from the water. Swamp then contacted dispatch requesting that the ambulance services in both Akwesasne and Cornwall be called for assistance. In his mind Cornwall ambulance was closer.

[25] Swamp said he instructed Rolfe to escort Mr. McDonald to her cruiser and detain for investigative purposes. The video shows that Swamp took control of Mr. Patel. Rolfe and Mr. McDonald went to her cruiser. She placed Mr. McDonald in handcuffs in the rear of the cruiser. The audio did not capture the discussion between McDonald and Rolfe on the way to her squad car. The immediate conversation that was captured in the cruiser focussed on Mr. McDonald’s comfort. Rolfe left Mr. McDonald in the rear of the cruiser and returned to the waterfront.

[26] Rolfe did not tell Mr. McDonald why he was detained. She did not explain the right to counsel and silence and right against self-incrimination. Mr. McDonald was detained without explanation in the back seat of the cruiser for approximately five minutes.

[27] The second body was removed from the water.

[28] Swamp said he instructed Rolfe to arrest Mr. McDonald for reckless causing death.

[29] Rolfe returned to the cruiser at approximately 9:39 a.m. and informed Mr. McDonald he was being arrested for reckless endangerment times two, advised of the right to silence and gave the caution, advised of right to counsel without delay and of legal aid access. She asked Mr. McDonald if he understood and he acknowledged. She asked if he wanted to speak with counsel and he indicated in the affirmative and identified local counsel. That conversation ended. Rolfe did not indicate whether how or when he would be afforded right to counsel implementation.

[30] No relevant evidence was generated in the interval between the time Mr. McDonald was detained and when he was informed of the reasons for arrest/detention, rights to counsel, silence and the caution.

Defence Position

[31] It is not argued that the reason for detention was arbitrary as on the evidence there were reasonable grounds to detain. The breaches of s. 10 (a)(b) made the detention arbitrary.

[32] Mr. Paul’s argument is that although the delay is not dispositive of anything, it is indicative of a pattern of disrespect for Mr. McDonald’s constitutional rights through the experience.

Applicable Principles

[33] Everyone has the right on arrest or detention:

a. to be informed promptly of the reasons therefor;

b. to retain and instruct counsel without delay and to be informed of that right

[34] The police duty to inform an individual of his Charter rights – reasons for detention, right to remain silent and right to retain and instruct counsel is triggered at the outset of an investigative detention – R. v. Suberu, 2009 SCC.

[35] In the circumstances, Mr. McDonald should have understood the reasons for the investigation and detention. That said, Rolfe’s failure to apprise Mr. McDonald of his rights on the detention constituted a breach of his Charter rights.

[36] The R v. Grant, 2009 SCC s. 24(2) analysis is concerned that the exclusion or admission of the evidence obtained in connection with the infringement should not cause a reasonable person, who understands the underlying values of the Charter, to conclude that the administration of justice is brought into disrepute. The three factors which bear on this are: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter rights of the accused, and (3) society’s interest in the adjudication of the case on its merits. The Court is to balance these factors to determine this issue.

Conclusion

[37] There was no obvious effect on the accused engendered by this breach which was quickly remedied. Mr. McDonald was abandoned in the back seat of the cruiser. Rolfe attended to Mr. McDonald’s warmth and comfort. He was not questioned during the five-minute hiatus. No evidence was obtained in the course of the infringement. A s. 24(2) analysis is not required.

The Statement to the Paramedic – Charter ss. 7, 8, 10(b); [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec183_smooth) ss. 183/184

[38] The Cornwall ambulance team arrived coincidently or within minutes – 9:46 a.m. Mr. McDonald indicated he did not require medical assistance. Rolfe communicated that to Pascale Ricard, paramedic. Ricard disregarded that advice and independently determined to undertake a preliminary triage and did. She asked how he was feeling, opened the door and felt Mr. McDonald’s neck area and made relevant diagnostic trauma mechanics enquiries. Mr. McDonald responded.

[39] Mr. McDonald confirmed a headache, he was the driver, there were four on the Sea-Doo and it capsized because it was overloaded. That conversation was captured on the in-car recording system. Rolfe said she was close enough to overhear the conversation. Picard testified she was unaware of the operational in-car recording. She did not consent to the recording of the conversation.

[40] It is agreed that Rolfe did not overtly direct Mr. McDonald’s attention to the fact of the operational in-car recording. Picard agreed that without access to the in-car recording her recall of the conversation with Mr. McDonald was limited to he was the driver and there were four people involved.

[41] The defence disputes the admissibility of this conversation on the following grounds:

i. The recording intercepts a private conversation that neither party had consented to, contrary to s. 183/184 of the Criminal Code;

ii. Picard was an agent of the state/person in authority and this conversation contravened Mr. McDonald’s right to silence in the interval between expressing a desire to consult counsel and implementation and could not be said to be voluntary;

iii. Rolfe’s eavesdropping without consent amounts to an unreasonable search and seizure, contrary to s. 8 of the Charter. There are significant informational privacy rights involved in health care consultations breached by the recording, by Rolfe’s intrusion by listening to the conversation and by Picard’s subsequent disclosure in her statement to police. Mr. Paul cited the Personal Health Information Protection Act, 2004 S.O. 2004 C. 3 as an indicator of the importance placed on health care related information. The recording and listening in constituted an illegal search.

[42] The Crown position is that a conversation held in the back seat of a police cruiser is denuded of a reasonable expectation of privacy. There is no reasonable expectation of privacy when one is having a conversation in the back seat of a police car so section 8 is not engaged. Sections 183/184 are not engaged for the same reason. It is not reasonable for an originator to expect that communications conducted in the police car would not be intercepted. There is no evidence to connect Ricard as an agent of the state and a paramedic is not without more a person in authority. None of Mr. McDonald’s Charter rights were compromised and the confession rule was not engaged.

Applicable Principles

[43] In Canada, no statement made out of court by an accused to a person in authority can be admitted into evidence against him unless the prosecution shows beyond reasonable doubt that the statement was made freely and voluntarily.

[44] The common law confession rule is not the only jurisdiction for assessing interrogation methods or the admissibility of statements. Statements made by an accused on detention or compulsion are subject to judicial scrutiny under ss. 24(1) and 24(2) of the Charter either because of the right to counsel – s. 10(b) or protection against self-incrimination/right to silence – s. 7 breach.

[45] The Charter excludes evidence obtained in violation of its provisions under s. 24(2) only if admitting the evidence would bring the administration of justice into disrepute. By contrast, a violation of the confessions rule always warrants exclusion.

Person in Authority

[46] The voluntariness scrutiny is only applied to statements made by an accused to a person in authority. The rule is generally not concerned with conversations between private citizens that might indicate guilt, as these conversations would not be influenced or affected by the coercive power of the state.

[47] A person in authority is a person formally engaged in the arrest, detention, examination or prosecution of the accused – R. v. Hodgson (1998), 127 C .C.C.(3d) 449.

[48] A private individual could be deemed to be a person in authority when:

i. The accused believes they are speaking to a person allied with the state who could influence or control the investigation or prosecution against him or her; and

ii. That perception is reasonable in the context of the circumstances surrounding the making of the statement. A parent, doctor, teacher or employer all may be found to be a person in authority if the circumstances warrant but the mere fact that they may wield some personal authority over the accused is not sufficient to establish them as persons in authority for the purposes of the confession rule.

Onus

[49] An evidential burden rests with the accused to lead some evidence of a reasonable belief that the recipient is a person in authority. This will be met where there is evidence the accused knew of the relationship between the recipient and the police or prosecution. The burden then shifts to the prosecution to establish beyond reasonable doubt that the person is not a person in authority or that the statement is voluntary – Hodgson, para 38-39.

Principles applied

[50] Ricard was not in a position of authority vis-à-vis Mr. McDonald. She was not acting as agent or under the supervision of the police. Rolfe advised Ricard of Mr. McDonald’s verbalized waiver of the need for medical attention. Ricard was not acting on instruction from the police in asking the questions. There was no pre-arranged plan involving the supply of information to the police.

[51] Ricard had her own due diligence demands in the performance of her duties. To accept Rolfe’s advice would breach her standard of care. Neither Rolfe nor Mr. McDonald had the requisite training to determine whether medical attention was appropriate. That she disregarded the inference in Rolfe’s advice is a clear indication of her independence and determination to perform her duties vis-à-vis Mr. McDonald. That she recommended attendance at the hospital indicates she was focussed on her duties and the police investigation was collateral.

[52] There is no reasonable basis for Mr. McDonald to view Ricard as having a role in his arrest, detention, examination or prosecution of his case. There is no evidence of Mr. McDonald’s subjective views. Regardless, had he understood Ricard to be a person of influence in his prosecution it was not reasonable in the circumstances.

[53] Accordingly the confessions rule is not engaged.

Private Conversation and ss. 7 and 8

Applicable Principles

[54] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. It is a personal right that protects people, not places. Section 8 is only engaged if the applicant can establish a reasonable expectation of privacy in the subject matter of the search.

[55] Where no reasonable expectation of privacy is established, no threshold justification is required because the search does not trigger Charter protection: R. v. Tessling, 2004 SCC 67, 2004 S.C.C. 67 para 20.

[56] A warrantless search is presumptively unreasonable. The burden is on the Crown to prove a reasonable search. A search or seizure will be reasonable if it is authorized by law, the law itself is reasonable and if the manner in which the search was carried out was reasonable.

[57] The subjective expectation of privacy is not a high hurdle. The reasonableness of an individual’s belief against the totality of the circumstances of a case is tested in the objective branch of the analysis.

[58] The objective or reasonable expectation of privacy is a normative rather than descriptive standard – Tessling para 42. It is concerned with the degree of privacy needed to maintain a free and open society, not necessarily the degree of privacy expected by the individual or respected by the state in a given situation – R. v. Ward 2012 ONCA 660 para 86.

[59] A person cannot have a reasonable expectation of privacy in what they knowingly expose to part or all of the public – Tessling para 40. In R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, the police installed unauthorized surveillance in Wong’s hotel room. Wong had made an open invitation to the public to his room. Mr. Justice Lamer, in minority for reasons but in support of the result wrote:

“I agree with my colleague that unauthorized surreptitious electronic surveillance may, in certain circumstances, violate an individual's rights under s. 8. I agree that such surveillance will violate s. 8 where the target of the surveillance has a reasonable expectation of privacy. However, in my view, the consideration of whether an individual has a reasonable expectation of privacy can only be decided within the particular factual context of the surveillance, not by reference to a general notion of privacy in a free and democratic society which an individual enjoys at all times. A person has the right, under s. 8, to be free from unauthorized surreptitious electronic surveillance where that person has a reasonable expectation that the agents of the state will not be watching or recording private activity nor monitoring or recording private conversations. Whether such an expectation is reasonable will depend on the particular circumstances; a person does not necessarily enjoy this right in all circumstances. It is sufficient to decide this case by considering whether the appellant had a reasonable expectation of privacy in this hotel room which had been effectively converted into a public gaming house. It is not necessary to decide whether the appellant would have such an expectation in all circumstances according to a general notion of privacy. The latitude of the concept of a reasonable expectation of privacy will be determined by the factual situations which arise in future cases.” (emphasis added)

[60] The privacy interests protected by s. 8 include personal privacy (our bodies), territorial privacy (our places) and informational privacy (information about a person’s intimate activities and identity). As Justice Binnie noted in Tessling at para 24, these broad categories of privacy interests are not mutually exclusive and will overlap. The distinction in privacy interests provides useful analytical tools for a principled and purposive analysis of when a reasonable expectation of privacy is engaged.

[61] In the case at bar, the privacy interest zones are informational and territorial.

[62] The use of the concept of territoriality of certain privacy rights does not contradict the notion that privacy interests protect people and not places because territoriality is an analytical tool to evaluate the reasonableness of a person’s expectation of privacy – Tessling para 22.

[63] The expectation of territorial privacy has been divided into a hierarchy with the home at the top. Lesser places include in descending order perimeter space around the home, commercial space, private cars, schools and prisons – Tessling para 22.

[64] Informational privacy is about protecting personal information that may reveal intimate details of the biographical core, lifestyle and personal choices of the individual or that directly compromises the individual’s dignity, integrity and autonomy. The quality of the information is an important contextual consideration. Information that identifies an individual can be protected.

Drawing the Reasonableness Line

[65] Privacy is a protean concept and the difficult issue is where the reasonableness line should be drawn – Tessling para 25.

[66] What is the subject of reasonable expectation of privacy can vary with the:

i. nature of the matter sought to be protected;

ii. the circumstances in which and the place where state intrusion occurs; and

iii. the purposes of the intrusion – R. v. Patrick, 2009 SCC 12 para 38.

[67] A normative standard implies that we should be reluctant to accept the idea that as technology develops, the sphere of protection for private life must shrink. As the state’s technical capacity for peeking and snooping increases, the protected sphere of privacy has refined and developed.

[68] Mr. Justice Sopinka contextualized the informational privacy reasonableness line in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 @ p. 293 as follows:

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from the state. This would include information which tends to reveal individual’s identity, intimate details of the lifestyle and personal choices of the individual. (emphasis added)

[69] While Justice Binnie, in Tessling, stipulated that Justice Sopinka’s illustration was not intended to be exhaustive and ought not to be treated as such – para 26 he concluded that dicta clearly establishes that not all information an individual may wish to keep confidential necessarily enjoys s. 8 protection.

[70] These are competing demands. The community wants privacy and protection. Safety, security and suppression of crime are legitimate countervailing concerns. The balancing involves an assessment of whether in a particular situation the public’s interest in being left alone by government must give way to the governments’ interest in intruding on the individual’s privacy to advance the goals of safety, security and suppression of crime – Tessling para 17/18.

[71] As further illustration of the tension, Mr. Paul highlighted the Personal Health Information Protection Act, 2004 as an indication of the importance attached to personal health information in the provincial system. I am satisfied that the intervention conducted by Ricard constituted health care under the act s.2 – health care defined.

[72] The pertinent purpose of the Statute is to establish rules for the collection, use and disclosure of personal health information about individuals that protect the confidentiality of that information and the privacy of individuals with respect to that information, while facilitating the effective provision of health care – s.1(a)

[73] Part IV of the Act in sections 38 – 50 provides for acceptable disclosures. S. 41 provides that:

“A health information custodian may disclose personal health information about an individual,

(a) subject to the requirements and restrictions, if any, that are prescribed, for the purpose of a proceeding or contemplated proceeding in which the custodian or the agent or former agent of the custodian is, or is expected to be, a party or witness, if the information relates to or is a matter in issue in the proceeding or contemplated proceeding; or

(d) for the purpose of complying with,

(i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, or

(ii) a procedural rule that relates to the production of information in a proceeding. 2004, c. 3, Sched. A, s. 41 (1).”

[74] It is settled that health-care workers ought not to be allowed or encouraged to be made part of the law enforcement machinery of the state. This concern articulated by Justice La Forest in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417 was a consideration in the ruling by Roscoe J.A. in R.v. Spidell, [1996] N.S.J. No. 211 at paragraph 18:

In Dyment, Justice La Forest discussed the issue of privacy and confidentiality and, after referring to the medical Code of Ethics, said that confidentiality is required because of the vulnerability of the patient at the time he consults a physician, especially in the hospital setting. He continued at page 258 as follows:

. . . The "Report of the Commission of Inquiry into the Confidentiality of Health Information" (The Krever Commission), 1980, has drawn attention to the problem in the law enforcement context in the following passage, vol. 2, at p. 91:

. . . the primary concern of physicians, hospitals, their employees and other health-care providers must be the care of their patients. It is not an unreasonable assumption to make that persons in need of health care might, in some circumstances, be deterred from seeking it if they believed that physicians, hospital employees and other health-care providers were obliged to disclose confidential health information to the police in those circumstances. A free exchange of information between physicians and hospitals and the police should not be encouraged or permitted. Certainly physicians, hospital employees and other health-care workers ought not to be made part of the law enforcement machinery of the state.

[75] As Justice Binnie observed in Tressling, the assessment focus as to the existence of an informational privacy interest in the McDonald/Ricard conversation lies in the quality of information that the data can actually deliver. Does the informational content expose any intimate details of the applicant’s lifestyle or information of a biographical nature?

Principles Applied

[76] The activity at stake is the recording of and eavesdropping on a conversation between a paramedic and an accused ensconced in the back seat of a police car. Was it a “private” interaction deserving of reasonable expectation of privacy? Was this an unreasonable search?

[77] In my view, and I conclude so humbly, is that having regard to the nature of the information gathered, the location together with well publicized ubiquitous police recording technology and circumstances in which it was gathered and the purposes for which it came to light, Mr. McDonald’s subjective expectation of privacy cannot sustain objective review. A conversation in the back seat of a police car is denuded of privacy. My reasons are as follows:

Totality of the Circumstances

Nature of the evidence

[78] The first question deals with the nature of the information at issue. The focus has to be on whether the information tends to reveal intimate details of the lifestyle and personal choices of Mr. McDonald. The questions posed by Ricard were generic mechanism of trauma related enquires driven by concern for invisible internal injury. The information sought and given was unrelated to intimate details of Mr. McDonald’s lifestyle and personal choices.

[79] This would be a different outcome had there been hint that Ricard inserted herself into a law enforcement role. My observation is that Ricard’s engagement was ingenuous relative to the issues before me. She was not a person in authority. Ricard was acting in accordance with the duty of her undertaking. The questions and answers were directed at her need to assess the extent of need for medical treatment. Mr. McDonald’s interests were in the comfort of knowing that if he was in need of medical treatment it was there for him. The information marshalled was available for disclosure pursuant to s. 41 of the Personal Health Information Protection Act, 2001

Subjective Expectation of Privacy

[80] Mr. McDonald had a subjective expectation of privacy in the informational content of his responses. Members of the public expect privacy in their medical affairs and do not parse the varying types of information between that which involves protected lifestyle, personal choice, core biographic or identification particulars and other that is less intrusive and does not attract a reasonable expectation of privacy.

[81] The real issue is whether Mr. McDonald’s expectation was objectively reasonable.

The circumstances in which and the Place where State Intrusion Occurs

[82] As noted earlier, the territorial context provides an analytical tool to assess the reasonableness of the individual’s expectation of privacy.

[83] Society and Charter scrutiny over the years demanded the installation of recording equipment for various facets of law enforcement interaction with the public. From one perspective, the back seat of a police car can be a dangerous location subject to as much controversy as the imagination can conjure. The recording equipment allays those concerns. The recording is valuable to all sides. It is not a new phenomenon.

[84] Mr. McDonald had been arrested and provided with the bundle of rights and cautions moments earlier. Implementation of his right to consult with counsel was pending. If the conversation in issue had been one involving consultation with counsel that would tend to trump the locational exigencies. As it was, an expectation of privacy for conversation held in the back of the police car is nominal. He was detained in the temporary jail that is the back seat of the police car. The car is the officer’s mobile office packed with technology including the in-car audio video recording equipment. The practical realities ought to have been apparent to Mr. McDonald. A communication in this circumstance is not a private communication within the definition in s. 183/184 of the Criminal Code.

[85] The events of the morning involving Mr. McDonald and the passengers were in the public’s view. The information imparted in the dialogue was observed first hand by Larry Mitchell. The police had that information as a component of the investigative narrative after the dialogue between Mitchell and Swamp.

[86] Rolfe was obliged to cease questioning or otherwise attempting to elicit evidence from Mr. McDonald until he exercised the reasonable opportunity to consult counsel. The applicable test concentrates on the interchange between the police and the accused to determine whether there is a causal link between police conduct and the making of the statement by the accused. That does not diminish her obligation to maintain security nor was she required to close her senses to events in her purview. It is a matter of establishing the appropriate line. As it was, she was witness to a conversation played out in her police car in which she was collateral.

Conclusion

[87] The exchange between Mr. McDonald and Ricard is admissible in all formats.

[88] As noted above, disclosure by Ricard of personal health information relating to Mr. McDonald within a proceeding or contemplated proceeding is accordingly contemplated under the Act.

[89] Mr. McDonald did not have a reasonable expectation of privacy in relation to the information communicated to Ricard. Notwithstanding the umbrella of privacy expectation attached to a medical intervention, the information itself was not protected. The recording and Rolfe’s observation were not unreasonable searches. A dialogue conducted in the back seat of a police car is inherently not a private communication.

[90] If I am incorrect in this analysis and Mr. McDonald’s subjective expectation of privacy was reasonable in all the circumstances, I expect the information would be admissible after a s. 24(2) analysis. Self-incriminating statements obtained as a result of a Charter breach will usually be excluded on the ground that reception would render the trial unfair. While systemic ignorance of procedural safeguards is not an answer, Rolfe did not elicit and Ricard was engaged in the performance of her duty. A decision by Rolfe to end the recording for the duration of the medical intervention without a full recorded explanation would raise more issues than it would solve. Further, the effect of this evidence on the trial is not prejudicial and does not raise the issue of trial fairness. Mr. Mitchell was eye witness to the incident. The admission of this evidence would not bring the administration of justice into disrepute.

The Voluntariness of the McDonald Statement with Corporal Ritchie and the Application for Exclusion for 10(a) and (b) Deficits Relative to the Conspiracy Charge

[91] Mr. McDonald was taken by ambulance to the CCH arriving at 10:15 a.m. Mr. McDonald was medically cleared at 11:18 a.m. Rolfe arranged private right to counsel of choice at 11:15 a.m.

[92] At 11:30 a.m., Rolfe advised Mr. McDonald he was also being charged with breach of probation. Rolfe gave the same recitation of rights and cautions as earlier and when she asked Mr. McDonald if he understood, he confirmed in the affirmative. When she asked if he wished to consult with counsel, again, he declined.

[93] Mr. McDonald was transported to the Cornwall RCMP detachment at 11:36 a.m. RCMP provided lunch at 12:30 p.m.

[94] Corporal Ritchie began an interview at 1:19 p.m. Ritchie began by confirming with Mr. McDonald that he satisfactorily exercised right to counsel. He explained the charge of criminal negligence causing death times two.

[95] Then, for the first time, Mr. McDonald was told about the charge of conspiracy to break US Immigration laws. In voir dire testimony, Ritchie said he understood that Mr. McDonald had been apprised of the conspiracy charge and that the package of rights and cautions were delivered earlier by another officer so he did not caution Mr. McDonald or advise of right to silence and counsel in relation to it.

[96] Ritchie also said: “This is an interview to kind of see your side of things of what happened because there is another person that lived but there is two people that didn’t so he is going to tell us his side of the story and you are going to tell us your side of the story and we are going to try to sort this out okay.”

[97] Ritchie provided the secondary caution. When Mr. McDonald said he understood this caution to signify “keep my mouth shut” Ritchie corrected him. Ritchie did not repeat the primary explanation of right to silence and caution.

[98] Mr. McDonald’s position was that he intended to abide his lawyer’s advice to say nothing until the lawyer and Mr. McDonald met personally and that is all he was going to tell Corporal Ritchie. Subsequently, Mr. McDonald made the point that he would live with the day’s events for the rest of his life so he was going to wait and see my lawyer before I say anything else. Ritchie said that is fine but I am going to talk to you. I am allowed to talk to you today. McDonald responded with “I can listen.”

[99] Ritchie referred to the statement provided to the paramedic three times – page 3 top, page 4 bottom, page 7 top.

[100] The defence challenges the admissibility of any portion of the statement for any purpose on the grounds:

i. The introduction of the conspiracy charge constituted a change in jeopardy that compromised his clarity on whether to provide a statement or not thereby requiring a fresh caution and right to counsel so that the interview subsequent should be excluded. There is no reliable way to extricate the portions of the statement dealing with the conspiracy from those portions dealing with criminal negligence;

ii. That by saying the words “and you are going to tell us your side of the story” Ritchie undermined Mr. McDonald’s understanding of the right to silence;

iii. That by referencing the two earlier statements – Swamp and Ricard, Ritchie compromised the integrity of the instant statement;

iv. That the explanation of the meaning of the secondary caution in response to Mr. McDonald’s “Keep my mouth shut” without reiterating the right to silence undermined Mr. McDonald’s understanding of his right to silence;

v. When Mr. McDonald requested the opportunity of speaking to counsel on page 6 when the interview turned toward the conspiracy, that was improperly denied and after that exchange Mr. McDonald’s will collapsed;

vi. That Ritchie used elements of the Reid technique to break Mr. McDonald’s will, including playing on sentiment for family, minimization, less culpable explanation, long soliloquy; and

vii. That the police should have instituted the Anunga protocol to invoke Indigenous voluntariness standards.

[101] The Crown position is that the statement was given voluntarily and should be deemed admissible because:

i. Notice of the conspiracy charge does not constitute a change in jeopardy;

ii. The right to a second consultation only arises when the change in the investigation involves a different and unrelated offence or it must involve a significantly more serious offence. These criteria are disjunctive. Neither is present in the case at bar;

iii. The Swamp and Ricard statements were legitimate references;

iv. Ritchie did not misrepresent the point of the secondary caution – he had already delved into right to silence and counsel at the outset of the interview. Mr. McDonald articulated his intentions to remain silent - page 2 twice, page 3, page 5 top and page 6;

v. The Charter right to counsel needs to be afforded once and the police complied; and

vi. That if there was a material change in jeopardy, parts of the statement can be saved.

Applicable Principles

[102] The confessions rule is concerned with voluntariness, broadly defined. A confession that is not voluntary will often (although not always) be unreliable. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination and maintaining the integrity of the justice system.

[103] A person in the control of the state’s criminal process has the right to freely choose whether or not to make a statement to the police.

[104] The Court in R. v. Oickle (2000) 2000 SCC 38, 147 C.C.C.(3d) 321 established a two-stage approach to assessment of voluntariness. The first stage examines a number of factors that include the use of inducements such as promises or threats, the existence of an operating mind and whether the police created an atmosphere of oppression. At this stage, a totality of the circumstances approach is used. The legal standard is whether the will (free choice) of the accused has been overborne by police conduct. This requires that the Court be sensitive to the particularities of the individual suspect. The focus is on the effect of the threat, promise or oppression, not simply that one was made.

[105] Offering inducements is a valid method of obtaining statements. Only improper inducements are prohibited. Those are inducements either standing alone or in combination with other factors are strong enough to raise a reasonable doubt about whether Mr. McDonald’s will was overborne.

[106] Valid forms of inducements include spiritual or religious appeals, polygraph results or minimizing moral gravity of the offence. Invalid forms of inducements include any connection of the statement to liberty, quid pro quo for any type of service by police or the prosecutor and discussion of the effect of a confession on sentence.

[107] Oppression can be a factor in long and aggressive interrogations, confrontation with false or fabricated evidence, deprivations of food, water, clothing, warmth, sleep, medical attention or denial of access to counsel. The issue of operating mind asks on the whole of the evidence whether the accused understood what he was saying (reliability) and the consequences of saying it to a person in authority (fairness of process).

[108] The second stage of the analysis is distinct and examines any police trickery used in securing the confession. The legal test is whether the tricks used shock the community. This concern is not a factor in this case.

Change in Jeopardy

[109] An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy – R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R.138. Jeopardy in this context includes the detained person’s risk of self-incrimination. That risk cannot be measured without knowledge of the reasons for the detention and the subject matter of the police inquiries.

[110] What amounts to a change in jeopardy meriting a second legal consultation has been articulated in various ways.

[111] If the risk of self-incrimination changes, the right to counsel must be re-stated so the detainee can decide in the face of new risk whether to exercise right to counsel. The risk may change either because the reason for detention changes or the focus of the police inquiry changes

[112] “Section 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation…In most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee (lineup, polygraph); a change in the jeopardy facing the detainee (has the advice in the initial consultation been overtaken by events); or reason to believe that the first information provided was deficient. The categories are not closed – R. v. Sinclair, 2010 SCC 35, para 2.

[113] An accused person need not be made aware of the specific charge he or she faces – R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714 paras 27, 28:

…the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning” – R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 – para 43.

[114] In this passage, McLachlin J. observed that the focus of the police investigation may change either because the offence changes to a significantly more serious one, even though the circumstances under investigation remain the same or the investigation turns to a different unrelated offence – R. v. Sawatsky (1997) 1997 CanLII 511 (ON CA), 35 O.R. (3d) 767 (ONCA)

[115] The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation. See Evans and Black – Sinclair - para 51.

[116] Factors such as that the charges arose from the same circumstances, or that the offences carried the same maximum penalty or that the new charge was a hybrid offence are not dispositive. When the new charge materially changes the accused’s exposure to moral blameworthiness there is increased jeopardy requiring iteration of 10(b) rights – R. v. Moore, 2016 ONCA 964.

Principles Applied

[117] The references to the Swamp and Ricard statements did not taint this interview. I ruled they are admissible.

[118] Neither the words “and you are going to tell us your side of the story” nor the discussion regarding the meaning of the secondary caution had the effect on Mr. McDonald of distorting his understanding of his right to silence. Mr. McDonald asserted his right to silence at the first opportunity - “My lawyer says don’t say anything until I talk to him personally that’s all I can tell you and if you have a problem with that call him.”

[119] Mr. McDonald asserted the right to silence five times before the discussion turned to the conspiracy.

[120] The recourse to befriending, family sentiment, conscience, less culpable explanation and soliloquy did not over bear Mr. McDonald’s will. Every such interview contains some aspects of the Reid techniques. The officer was persistent but courteous and accommodating.

Anunga Rules

[121] The Anunga Rules have not been adopted in Canada. Canadian courts do not factor in the accused’s Indigenous status in assessing voluntariness.

[122] Mr. McDonald was given a meal, water and warm clothing. He did not appear to be affected by illness, fatigue or intoxication. He was afforded legal assistance in relation to the criminal negligence charges.

[123] That said, a sensitive review of the interrogation reveals a man awash in competing trepidation. The issue of the impact of the changed jeopardy involved in the conspiracy charge on his assessment of whether to forgo the right to silence is of concern in this context.

Change in Jeopardy

[124] When Mr. McDonald consulted with counsel while at the hospital earlier in the day, he understood the charges to be criminal negligence causing death times 2. He was not apprised of the conspiracy to circumvent United Sates law charge until the beginning of the interrogation.

[125] Mr. McDonald was cognizant of the seriousness of the charges related to criminal negligence causing death. He lamented the death of two men. That said, notwithstanding that the charges arise from the same fact scenario and that the human smuggling charge standing alone is not more serious than the criminal negligence charge the marrying of the two brings a significant aggravating factor into the alleged moral blameworthiness involved in the circumstances getting to criminal negligence causing death and markedly increased the potential penalty Mr. McDonald faced.

[126] Even Mr. McDonald recognized the change in jeopardy. So long as the conversation stayed on the circumstances of the drowning, he blithely asserted right to silence. When the conversation turned to the conspiracy, he immediately requested another counsel consultation that was denied – page 6. His resolve (will to not engage in substance) dissolved after the denial.

[127] In R. v. Sawatsky, Justice Doherty wrote:

Considering the purpose underlying s. 10(b) and its fundamental importance in maintaining the fairness of the criminal investigatory process, I think it is appropriate to decide close cases in favour of the reiteration of the s. 10(b) rights. The police should be encouraged to re-advise detainees of the right to counsel when the focus of an investigation begins to shift or broaden. The administration of criminal justice is better served by a restatement of the detainee's s. 10(b) rights which is a little early than one which is too late to serve its intended purpose. (emphasis added)

[128] A Court cannot speculate about the advice an accused might receive from a lawyer in any given situation.

[129] Although Corporal Ritchie proceeded with interview in ignorance of these omissions tending to reduce the seriousness of the breach on his part, it is reasonable to expect the police writ large to ensure Charter diligence.

Conclusion

[130] Accordingly, the police breached Mr. McDonald’s Charter rights under s. 10(a) and (b) by neglecting to apprise him of the conspiracy aspect of the offences charged on arrest and by failing to afford him a second opportunity to speak to counsel when he was apprised and his jeopardy changed.

[131] The withholding of right to counsel is a factor in whether the interrogation became oppressive to the point of overbearing Mr. McDonald’s will and in the circumstances raises a reasonable doubt as to the voluntariness of the statement.

[132] In my view, the admission of the statement would have a negative impact on society’s confidence in the justice system, having specific to the three R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 factors. First, in terms of the seriousness of the Charter-infringing state conduct, depriving the appellant of access to counsel in the face of his increased jeopardy was serious. Second, this deprivation had a serious impact on the protected interests of the appellant, namely the appellant's right to make a meaningful and informed choice of whether to speak to the police. Mr. McDonald’s resistance following the denial of his request for a second legal consultation flagged noticeably. Third, with respect to society’s interest in adjudicating the case on its merits, declining to admit the evidence does not undermine the ability of the prosecution to proceed – as in breathalyzer results. As noted by the Supreme Court in Grant, at para. 91, there is no absolute rule of exclusion for Charter-infringing statements. However, as a matter of practice, courts have tended to exclude such statements on the ground that admission on balance would bring the administration of justice into disrepute. Such is the case here.

[133] Mr. White submitted that should this be the ruling there are options, namely redaction of the offending portions of the statement. The reference to the conspiracy charge came after the confirmation of rights to counsel and caution. With respect, that tainted all that followed.

[134] This statement is excluded from the trial.

The Warrant for the Hospital Records – s. 487

[135] On March 21, 2017, the Crown obtained a warrant for the hospital records generated during Mr. McDonald’s visit on September 2, 2015.

[136] The defence challenges the validity of the warrant on the grounds that the ITO contained reference to facts not properly in evidence that should be deleted – Mr. McDonald’s statement to Corporal Ritchie – ITO paragraph #34 and the typed statement of Mayur Patel taken September 2, 2015 – ITO paragraph 35 and the content of the ITO without those facts is insufficient to achieve the requisite standard of reasonable grounds to believe an offence has been committed and whether the identified documents will afford evidence respecting commission of the offence.

[137] The defence emphasizes the high level of privacy inherent in medical records.

[138] The Crown position is that the warrant could have issued without reference to either statement. Further, even if the seizure of the hospital records violates s. 8 of the Charter, the evidence should be admitted under s. 24(2) Grant analysis.

[139] It was reasonable for Detective King to believe that evidence relevant to the alleged offences would be found in Mr. McDonald’s hospital records since:

i. Two people drowned in a Sea-Doo incident;

ii. An eye witness identified Mr. McDonald as the driver;

iii. The eye witness described how the Sea-Doo capsized with three passengers, two of whom drowned;

iv. Mr. McDonald acknowledged responsibility for the Sea-Doo to Leroy Swamp;

v. Mr. McDonald was taken to the hospital within an hour of the incident; and

vi. Mr. McDonald had spoken to a paramedic immediately before transport to the hospital.

[140] Detective King’s grounds for the requisite belief were:

The medical records will provide details of any injuries sustain and an explanation given to the doctor and medical staff of how the accident happened. This information will assist police in proving or disproving a statement made by Mr. McDonald on September 2, 2015.

Applicable Principles

[141] Justice Goodman identified the legal principles on these applications in R. v. Stevens, 2015 ONSC 436 beginning at paragraph 50 as follows:

[50] First, in addressing the application to exclude the evidence of the hospital records, s. 8 of the Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

[51] The jurisprudence provides that a warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. In the event of a warrantless search, the onus is on the Crown to rebut the presumption of unreasonableness. As there was a judicially authorized warrant, it is trite law that the onus rests on the applicant to establish a breach of her Charter rights.

[52] In conducting my analysis of the decision of the authorizing justice, the scope of review is that set out by Sopinka J. in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.J. No. 115, (S.C.C.) at 188:

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, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[53] It is clear that on a s. 8 Charter application, the court reviewing a search warrant Information to Obtain (“ITO”) does not stand in place of the justice of the peace who issued the warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. The properly circumscribed limits of a review were also summarized by the Court of Appeal in R. v. Mahmood, 2011 ONCA 693, at para. 99. See also R. v. Morelli, 2010 SCC 8, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59; Garofoli, at p. 1452; and R. v. Wiley¸1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263, at pp. 273-274.

[54] In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts:[3]

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45. (aff’d, 2011 SCC 32).

(2) [T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, at para. 57.

(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) at para. 135:

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168; R. v. Chan, 1998 CanLII 5765 (ON CA), [1998] O.J. No. 4536 at para. 4, (C.A.);

(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p. 190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364;

(5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.

(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick(1991), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470;

(7) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case: R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213, “or even on a balance of probabilities”: R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

(8) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case. “There is no fixed formula for what constitutes reasonable grounds to believe. The concept of reasonable grounds involves the application of common sense as well as practical and non-technical principles”: R. v. Philpott, [2002] O.J. No. 4872, (Sup. Ct.) at paras. 85-87.

(9) The ITO must raise credibly-based probability that the search will produce evidence of a crime. Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. A non-exhaustive guide was provided by Cromwell J.A. (as he then was) in R. v. Morris (1998), 1998 NSCA 229, 1998 CanLII 1344 (NS CA), 134 C.C.C. (3d) 539 (N.S.C.A.).

(10) It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request” for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320.

[55] The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was amply described in the Cunsolo case.

[56] A court considering the issuance of a search warrant is entitled to draw reasonable inferences: R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Sanchez (2004), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Gen. Div.), at pp. 365, 370.

Analysis: Sections 8 and 24(2) of the Charter:

[57] I am cognizant that the scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.

[58] There is a significant obligation on an affiant to be frank, fair and honest in the ITO. In assessing the validity of a search warrant, any improperly obtained evidence must be expunged from the ITO before the validity of the warrant can be properly assessed. A reviewing court may then consider deficiencies in the ITO relating to the presence, misstatements, overemphasis or a failure to mention material facts, or misleading information. Any or all of these deficiencies can lead to a finding that the warrant is invalid.

Principles Applied

[142] There is no suggestion of misstatement or misrepresentation in the ITO. Detective King could not know how the evidentiary rulings would go.

[143] The information sought and given was unrelated to intimate details of Mr. McDonald’s lifestyle and personal choices.

[144] I am satisfied that the ITO denuded of paragraphs 34 and 35 could establish the requisite reasonable grounds to establish credibly-based probability that the search would produce evidence of the crime. The circumstances depicted in paragraph 139 raise more than mere suspicion that the hospital records would afford evidence in this matter.

[145] Mr. Paul submitted that if the information was intended to assist in proving or disproving the statement given to Corporal Ritchie, then there is no purpose to the warrant. That overlooks the assertion that the medical records will provide details of any injuries sustained and an explanation given to the doctor and medical staff of how the accident happened.

[146] The application to strike the warrant is dismissed.

[147] If my views on this issue are incorrect and the warrant fails, then the search results are admissible notwithstanding the s. 8 breach because:

i. Seriousness of the breach – it is an adjudicative collateral rather than mistake by the officer;

ii. Impact on accused – the pertinent details are non-medical in nature and result in minor intrusion on his privacy interests; and

iii. The public’s interest in adjudication on the merits is neutral.

The Honourable Mr. Justice Rick Leroy

Released: February 1, 2018