Court File and Parties

BARRIE COURT FILE NO.: CR-17-228-00 DATE: 20190314 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NOAH POISSON Defendant

Counsel: Sarah Tarcza, for the Crown Leo A. Kinahan, for the Defendant

HEARD: January 16, 2019

REASONS FOR JUDGMENT ON APPLICATION TO exclude medical records AND BLOOD SAMPLES

de Sa J.

Overview

[1] The Applicant, Noah Poisson, sought to exclude medical records, blood samples, and urine samples seized by police in relation to an Impaired Driving investigation. The samples were obtained by police with a warrant.

[2] According to the Applicant, the affiant omitted relevant facts, and mischaracterized the circumstances in the Information to Obtain (“ITO”) with a view to obtaining the warrant. The Applicant also argues that the Applicant’s blood was drawn by hospital staff without his permission and in complete contravention of his Charter rights.

[3] At trial, I dismissed the application with reasons to follow. These are my reasons.

Summary of Facts

Events of August 15, 2016

A) The Accident

[4] On August 15, 2016, members of the Ontario Provincial Police (“OPP”) were dispatched to a 911 call for a fatal motor vehicle collision.

[5] The Applicant was identified to be the driver of the vehicle. While travelling southbound on Line 13 North in the Township of Oro-Medonte, the vehicle veered off the road towards the right, travelling a short distance in the ditch, before hitting an embankment on the edge of a creek. Mr. Pautsch was ejected from the vehicle. The vehicle rolled over onto its roof, landing on top of Mr. Pautsch. Mr. Pautsch died at the scene.

B) The Interactions with the Accused at the Scene

[6] Jason Mawdsley (“Mawdsley”) who was living directly across from the collision scene, heard the crash and immediately attended to assist. Mawdsley encountered the Applicant wandering in the vicinity of the vehicle calling out for his friend. Mawdsley spoke with the Applicant briefly, and smelled an odour of alcohol on his breath. Mawdsley called 911.

[7] Robert Quinn (“Quinn”), a neighbour of Mawdsley’s, also heard the crash and attended the scene in less than a minute. When Quinn first arrived at the scene, he observed the Applicant coming up from the driver side of the vehicle. Quinn observed the Applicant to be disoriented and in shock. He did not detect an odour of alcohol on the Applicant. Quinn overheard the Applicant tell Mawdsley that he had two beers throughout the day.

[8] Firefighters and EMS arrived at the scene soon after the 911 call from Mawdsley. One of the firefighters on scene, Brian English, observed “Busch” beer cans inside and outside the overturned vehicle. This information was relayed to police.

[9] Mark Jermey (“Jermey”), a volunteer firefighter with Oro-Medonte Fire, spent 10-15 minutes with the Applicant in the ambulance. While speaking with the Applicant, Jermey detected a very strong smell of alcohol on the Applicant. The Applicant told Jermey that he was coming from a party, and that he does “not normally drink and drive” and that he really screwed up. Jermey also overheard the Applicant speaking to his father. He heard the Applicant say that “I fucked up” and “I need you here now”.

[10] Graham Coulter, a paramedic who attended to the Applicant, confirmed that the Applicant stated he was coming from a party and had been drinking, but he did not specify an amount. Hugh Dunlop, another paramedic on scene, overheard the Applicant say he had consumed two “Twisted Teas”.

[11] Police Constable (“PC”) Anita Vlasic and PC Anne Emmerson-Stringer (the investigating officer) from the OPP arrived on scene a short time after EMS. PC Vlasic’s notes indicate that she arrived at 23:27 and soon after spoke to Mawdsley regarding the events. PC Emmerson-Stringer’s notes indicate that she arrived at the location at 23:39 and spoke with the Applicant.

[12] At the scene of the accident, both officers were in close proximity to the Applicant. They checked for the smell of alcohol on the Applicant’s breath, observed his behaviour and his walk, and spoke with the Applicant. Neither PC Emmerson-Stringer, nor PC Vlasic detected any signs of impairment or even the odour of alcohol on the Applicant. Neither officer believed they even had a reasonable suspicion to justify a roadside approved screening device demand nor grounds to arrest for impaired driving.

[13] The Applicant was brought to Orillia Soldier’s Memorial Hospital (“OSMH”) by EMS for medical treatment. At 1:28 a.m. on August 16, 2016, PC Vlasic attended at the hospital to check on the status of the Applicant. A nurse advised PC Vlasic that blood samples had been taken from the Applicant and other medical procedures were to be completed. PC Vlasic did not act on the information.

Road and Weather Conditions on the date of the Accident

[14] The police inspected the scene a short time after the accident. The road on Line 13 North, Oro-Medonte, was made up of two lanes, one going in each direction. The portion of the road on which the accident occurred was flat. The road was straight with no bends in it and in good condition. While it was dark, the weather was clear and dry on the night of the accident.

[15] The environment and/or the road conditions were determined not to be a factor in the fatal collision.

Police Apply for and Obtain a Warrant for the Blood and Medical Records

[16] On August 16, 2016, Detective Constable (“DC”) Salman Majid was assigned to seek a search warrant for the Applicant’s blood and urine samples being held at the hospital, and a production order for the hospital medical records. The police were looking to determine the Applicant’s blood alcohol concentration for an investigation into impaired driving.

[17] In furtherance of the investigation, DC Majid attended the hospital (OSMH) and spoke with Lisa Brown (“Brown”), one of the staff working at the hospital regarding the samples. She confirmed that the blood samples were taken from the Applicant. However, she had no information as to whether or not the samples had been maintained. Brown advised that “since the blood was not sampled and sealed, there was a good chance of contamination since the same sample was used for analysis”. DC Majid was directed by Brown to speak with Rachel Anderson who was the technologist that actually extracted the sample.

[18] DC Majid spoke with Rachel Anderson who confirmed that she had taken the Applicant’s blood. She confirmed that the blood “would have been placed in the fridge” and was secure. There was no concern with respect to contamination.

[19] On August 18, 2016, PC Van Allen attended the hospital to seal the Applicant’s blood sample. The blood had been set aside by technicians in a bio hazard bag and marked “save for police”. The hospital had a general policy to set aside samples from motor vehicle collisions in case of a police investigation. With the assistance of the lab staff, PC Van Allen removed three vials from the bio hazard bag and one urine sample, sealed them, and placed them back in the fridge pending the warrant.

[20] On the basis of the information obtained from the investigation, DC Majid applied for the warrant for the blood and the medical records. Both the search warrant and production order were granted by Justice of the Peace Frederickson on August 26, 2016, and were executed the same day.

Results of the Blood Tests

[21] The hospital records showed a blood alcohol level of 34.4 mmol/L which is equivalent to a blood alcohol concentration (“BAC”) of 136 mg of alcohol in 100 ml of blood. Also, a cocaine screen of the Applicant’s urine tested positive.

[22] Subsequent testing by the Centre of Forensic Sciences (“CFS”) of the seized blood samples revealed a result of 129 mg of alcohol in 100 ml of blood and no presence of cocaine in the blood.

[23] Based on the results of the hospital sample, the read–back analysis performed by the CFS toxicologist revealed a projected BAC of 136 to 171 mg. of alcohol in 100 ml of blood at the time of the collision. The read-back analysis performed on the CFS results revealed a projected BAC of 129 to 164 mg of alcohol in 100 ml of blood at the time of the collision.

[24] Additionally, a DNA profile generated from blood-like staining on the seized driver’s side airbag yielded a positive result (a match) when compared with the seized blood samples of the Applicant.

Analysis

1) Section 8 – Challenge to the Sufficiency of the Grounds

A. General Principles

[25] The test governing the review of a search warrant is clear. The reviewing judge is simply to determine whether the issuing judge could have granted the warrant on the basis of the reliable information contained in the affidavit, as amplified on review. The reviewing judge is not entitled to substitute his or her view for that of the issuing justice.

[26] A warrant challenge can be framed as a facial attack, subfacial attack, or both. A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19. The record examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: see R. v. Sadikov, 2014 ONCA 72, at paras. 37-39; R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.

[27] In contrast, a subfacial challenge seeks to demonstrate by way of “amplification” that the affidavit is deficient having regard to other facts which were not available to the issuing justice at the time the warrant was issued. [1] In a subfacial challenge, material is placed before the reviewing judge to show that the ITO has errors about facts, contains evidence unlawfully obtained [2], or that the information presented to the justice of the peace does not tell the whole story, or mischaracterizes the circumstances in some way: see R. v. Shivrattan, 2017 ONCA 23.

[28] Erroneous information, misstatements, or evidence obtained in breach of the Charter are excised from the ITO: see Araujo, at para. 59; Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; Sadikov [3]; R. v. Ebanks, 2009 ONCA 851.

[29] Although deliberate or fraudulent misstatements must be excised from an affidavit, inadvertent or minor errors made in good faith in drafting of the affidavit can be amplified by the Crown on review in order to correct the mistakes, provided that the corrections are not used to enhance the original grounds in the ITO.

[30] The Supreme Court of Canada in Araujo described the proper scope of Crown amplification evidence, making it clear that amplification cannot be permitted to circumvent the requirement of prior judicial authorization. At para. 59, LeBel J. explained:

The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests …, amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize … the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification.

[31] Having regard to the amplified record, the reviewing judge must then determine whether the warrant “could have issued”. The reviewing judge must not set aside the authorization unless he or she is satisfied on the whole of the material presented that there was no basis for it: see Araujo, at para. 51; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 26. As explained by the Supreme Court in Morelli, at para. 40:

The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[32] If the inclusion or omission of certain facts by the affiant leads to the issuance of a warrant in cases where it should not have been issued, a breach will be made out. This is true even if the affiant had no intention to mislead: see Morelli; R. v. Dhillon, 2010 ONCA 582.

[33] Where an affiant has been shown to have deliberately provided false statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside even where sufficient grounds remain: see R. v. Paryniuk, 2017 ONCA 87; R. v. Vivar, 2009 ONCA 433; R. v. Morris, 1998 NSCA 229, (1998), 134 C.C.C. (3d) 539, at p. 553; R. v. Colbourne, at para. 40. [4] Such cases should be reserved for circumstances where the affiant’s intentions in this regard are clear.

B. Application to the Facts of the case

[34] The Applicant argues that that while there may have been a basis for an “over 80” [5] and/or dangerous driving charge, the ITO was sought on the basis of Impaired Driving and Operation of a Motor Vehicle causing Death. The Applicant takes the position that the affiant intentionally overstated the indicia of impairment with a view to obtaining the warrant for Impaired Driving.

[35] According to the Applicant, PC Emmerson-Stringer and PC Vlasic had direct and prolonged contact with the Applicant and were specifically looking for indicia of alcohol consumption and/or impairment. Neither officer was able to detect any symptoms of impairment or any odour of alcohol emanating from or near the Applicant. The ambulance attendants also did not detect the odour of alcohol on the Applicant.

[36] According to the Applicant, the affiant intentionally understated these observations and overstated the observations made by Mawdsley and Jermey with a view to obtaining the warrant.

[37] The Applicant also identifies various errors or omissions made in the warrant demonstrating the affiant’s intention to mislead which require that the ITO be set aside. More specifically, the Applicant points out the following errors and/or omissions:

1. The affiant misattributed observations made by Quinn to Murray Langman (“Langman”), one of the firefighters on scene, regarding him overhearing the Applicant state he had two beers throughout the day. The Applicant argues this error was intentional with a view to corroborating Mawdsley’s evidence by another witness (namely Langman).
2. The affiant did not reference that Quinn heard the sound of the car passing by and it did not sound like it was speeding.
3. The affiant incorrectly referenced that there were two “Twisted Tea” cans observed in the vehicle when there were not.
4. The affiant failed to point out relevant facts that would weaken the reliability of Mawdsley and Jermey. For example: i. Mawdsley initially told PC Vlasic that he heard the Applicant calling for “Patrick”. When Vlasic asked if it could have been “Parker”, Mawdsley asked to correct his statement in this regard to avoid embarrassment. The affiant failed to reference Mawdsley’s attempt to change his statement. ii. Jermey’s evidence was evidently contradicted by other witnesses (PC Vlasic and PC Emmerson-Stringer) who were with the Applicant at the same time and did not smell the odour of alcohol on the Applicant or observe him to be impaired.
5. The affiant failed to reference Lisa Brown’s statement that the reliability of the medical records and/or blood samples may have been tainted;
6. The affiant failed to advise that the blood samples of the Applicant were drawn by hospital staff without his permission and in breach of the Applicant’s 10(b) Charter rights;
7. The affiant failed to point out that the police, at this point in the investigation, were still uncertain as to whether the Applicant was the driver.

[38] First of all, the Applicant had been identified by police early on in the investigation to be the driver. This is evident from the surrounding investigation which is referenced in the ITO. In my view, the Applicant’s challenge in this regard is without merit. There were clearly grounds to believe the Applicant was the driver.

[39] I agree with the Applicant that the ITO does contain a number of minor errors. For example, the Applicant erroneously attributed the statements of Quinn to Langman regarding the conversation about alcohol consumption (two beers). The affiant also mistakenly referenced cans of Twisted Teas being observed in the vehicle. In fact, it was beer cans that had been observed in and around the vehicle on the day of the accident. The Twisted Tea cans were observed at the scene some days later when the vehicle was removed.

[40] While I recognize the existence of these errors, in my view, nothing would suggest that they were intentional. Nor would these errors have any possible effect on the warrant’s issuance.

[41] Similarly, I do not view Mawdsley’s attempt to correct a minor error in his statement as material to his credibility. In my view, this fact also could have no possible bearing on the warrant’s issuance.

[42] I also disagree with the Applicant that the affiant mischaracterized or understated the circumstances with respect to the observations of PC Emmerson-Stringer and PC Vlasic.

[43] The affiant made clear that these officers did not smell alcohol on the Applicant, and the investigating officers did not have a reasonable suspicion that the Applicant was impaired. This is specifically stated in the ITO. In my view, adding all the specific observations of the police officers would not have made a difference.

[44] I also disagree with the Applicant that the affiant was required to advise the issuing justice of possible contamination of the blood. While the initial hospital attendant (Lisa Brown) raised a possible concern, the affiant’s conversations with the technician who actually seized the blood (Rachel Anderson) satisfied him that the samples had been properly preserved. The affiant must exercise some judgment in deciding what to include in a good and effective affidavit: Ebanks, para. 43. Indeed, in preparing an affidavit, an affiant should be not only full and frank but also "clear and concise": see Araujo, at para. 46.

[45] Furthermore, there was nothing improper about the way the blood was drawn. The evidentiary record indicates that the blood was drawn strictly for medical purposes. The statements in the affidavit are accurate in this regard. There was no Charter breach that was hidden from the issuing justice.

[46] Clearly there were minor errors in the affidavit. However, I do not accept the Applicant’s contention that the affiant was trying to mislead the issuing justice. The errors identified by the Applicant were minor in nature, and, in my view, were not intentional. Nor could they possibly affect the warrant’s issuance.

[47] As the jurisprudence makes clear, the reviewing judge should be focussed on whether the ITO, in the face of the amplified record, contains sufficient reliable evidence on the basis of which the warrant could have issued: see Morelli, at para. 40; Sadikov [6]; Ebanks. As the Ontario Court of Appeal explained at paras. 57-58 in R. v. Nguyen, 2011 ONCA 465:

[T]he central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the 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. This is particularly so where, as here, the trial judge has specifically found that the applicant did not intend to mislead the issuing justice. [Emphasis added]

[48] In this case, the fact that PCs Vlasic and Emmerson-Stringer did not notice the smell of alcohol or perceive impairment would have had to be weighed against Mawdsley and Jermey’s perceptions of the odour of alcohol. It would also have to be considered in conjunction with the utterances made to the EMS attendants, and to Jermey which confirm that the Applicant had been drinking. Moreover, the circumstances of the accident itself would be a strong indicator of impairment: see R. v. Kish.

[49] In my view, having regard to the amplified record, the warrant clearly could have issued. As Rosenberg J.A. explained in R v. Jacobson, at para. 22:

The standard of reasonable grounds does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued.

The Blood Samples

[50] The Applicant argues that his blood was drawn by hospital staff without his permission and without regard to his right against self-incrimination, unreasonable search and seizure, and right to consult with counsel.

[51] According to the Applicant, the technician acted as an agent for the police (without request but impliedly accepted) by drawing blood in part for the police investigation. Hospital staff advised police that a sample had been taken. The Applicant’s blood was kept in a separate biohazard bag marked “save for police” reflecting the hospital’s policy that blood be set aside for patients involved in motor vehicle collisions for the purpose of any police investigation. The hospital attendant also permitted police to seal the blood samples in anticipation of the warrant application.

[52] The Applicant argues that the blood samples and medical records should be excluded on this basis.

[53] Clearly an individual who enters a hospital to receive medical treatment is not in a Charter-free zone. Where the individual is in custody in hospital, the police have an obligation under section 10(b) of the Charter to provide the requisite access to counsel: see R. v. Taylor, 2014 SCC 50, [2014] 2 SCR 495, at paras. 34-36. The police also cannot seek the assistance of physicians or the medical staff to obtain evidence or information in circumvention of an individual’s Charter rights.

[54] In this case, however, the Applicant was not detained or in the control of the police. Indeed, when the Applicant was taken to the hospital, the investigating officers did not believe the Applicant was impaired. PC Vlasic merely attended the hospital to check on the Applicant’s condition. The police did nothing to obtain private information pertaining to the Applicant from the hospital or from the medical staff. Nor was private information shared by medical staff in the absence of a warrant.

[55] Nothing would indicate that the technicians were acting at the behest of the police in taking the blood. The blood that was taken from the Applicant by the technicians at the direction of the attending physician and was taken strictly for medical purposes: see R. v. Culotta, 2018 ONCA 665, at para. 51. To suggest that a doctor is required to provide a patient with the rights to counsel before administering the requisite medical tests on the possibility of a police investigation would push the parameters of section 10(b) much too far.

[56] I also do not agree that the hospital policy of preserving the blood somehow constitutes a violation of the Applicant’s rights. Had the medical staff been drawing blood for the purposes of the police investigation, and/or with a view to assisting police, the argument advanced by the Applicant would be justified. The hospital cannot be working with the police for the purposes of furthering a police investigation.

[57] Here, however, the blood was not drawn to assist with a police investigation. It was drawn for medical purposes. Once drawn, the hospital policy to preserve the evidence in the face of the impending police investigation was a sound one. Indeed, if the hospital is aware that the police are involved in an investigation, they would be under an obligation to preserve the blood samples. The blood samples, in such circumstances, become evidence which may not only implicate, but could exonerate an individual under investigation. To destroy the blood samples in such circumstances, once drawn, would be improper.

[58] Finally, for the police to secure the blood samples pending the warrant was also justified. In my view, if the police did not take such measures, they would have been derelict in their duties. This was no different than securing an investigation scene prior to obtaining a warrant. The police conduct was reasonable. Moreover, no privacy interest of the accused was engaged by such conduct. To the extent there was an “interference”, in my view, it would be justified: see R. v. Reeves, 2018 SCC 56, at paras. 76-96.

Section 24(2) of the Charter

[59] Even if I am incorrect on the sufficiency of the warrant, and/or the existence of any breach in relation to obtaining and preserving the blood samples or the medical records, in my view, I would still admit the evidence under section 24(2).

[60] The Supreme Court elucidated the formulation of the section 24(2) analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. In Grant at para. 71, the Court summarized the framework for determining whether the administration of justice would be placed into disrepute if the evidence was to be excluded:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[61] In this case, the seriousness of any state misconduct would be at the lower end of the spectrum. If the grounds in the warrant were found to be deficient, it would be a very close call. Nothing indicates a disregard for Charter-protected rights, or a flagrant breach. In my view, there is no basis to suggest that the affiant intentionally omitted information from the ITO or sought to subvert the prior authorization process: see Paryniuk [7]. Indeed, applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights: see R. v. Rocha, 2012 ONCA 707.

[62] If the hospital’s policy in setting aside the blood samples was somehow in breach of the Charter, again, the interference would be inadvertent. Nothing in the existing jurisprudence would suggest that such conduct amounts to a Charter breach.

[63] The privacy interest is clearly at the high end of the spectrum. A person can reasonably expect that personal information collected by physicians/medical staff for medical purposes will be kept private, will be used strictly for medical purposes, and will not be shared with the police for investigative purposes in the absence of a warrant. The importance of maintaining such protections is evident.

[64] Finally, the state would have a strong interest in adjudication on the merits. The nature of the alleged criminality is very serious. Impaired driving is a serious offence. The evidence itself is necessary to the Crown’s case.

[65] Given the nature of the breaches, if any, and the effect of excluding the evidence - reliable evidence that is essential to proof of the Crown’s case – at trial, the repute of the criminal justice system would be better served by admitting the evidence. In the circumstances of this case, I find that excluding the evidence would bring the administration of justice into disrepute.

[66] Accordingly, the application is dismissed.

Justice C.F. de Sa

Released: March 14, 2019

[1] Obviously, this pertains to facts or information reasonably available to the police at the time the warrant is being sought.

[2] For example, there may be Charter breaches underlying the evidence summarized in the ITO. Charter breaches will often still require a 24(2) assessment even if sufficient grounds remain in the ITO. In R. v. Plant, [1993] 3 SCR 281, sufficient grounds remained in the ITO despite the excision of an illegal perimeter search conducted by police. Regardless, the Court held that a 24(2) assessment was necessary given the temporal connection between the breach and the investigation that led to the warrant.

[3] See also R. v. Rose, 2015 ONCA 183.

[4] If this threshold were met, the Court’s residual authority to exclude evidence would come into play. As explained in R. v. Harrer, a court can always control its own process by excluding evidence that would render the trial unfair and/or would amount to an abuse: see R. v. Harrer, [1995] 3 S.C.R. 562 at para. 46.

[5] “Over 80” refers to operating a motor vehicle with a blood alcohol concentration over 80 milligrams of alcohol in 100 millilitres of blood.

[6] See also R. v. Rose, 2015 ONCA 183.

[7] As outlined above, a reviewing court retains a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like: Colbourne, at para. 40; R. v. Kesselring (2000), 145 C.C.C. 119, at para. 31; Lahaie v. Canada (Attorney General), 2010 ONCA 516, at para. 40; Vivar, at para. 2. Courts of Appeal in other provinces have reached the same conclusion: see R. v. Bacon, 2010 BCCA 135, at para. 27; R. v. McElroy, 2009 SKCA 77, 337 Sask. R. 122, leave to appeal refused, [2009] S.C.C.A. No. 281, at para. 30; Morris, at paras. 90 and 92.