Court File and Parties
Court File No.: SCA 178-18 Date: 2019-04-23 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Olavi Alhonmaki, Appellant
Counsel: Lindsey A.J. Santerre, for the Crown P. Berk Keaney, for the Appellant
Heard: January 24, 2019
Before: Cornell J.
Decision on Summary Conviction Appeal
Introduction
1Mr. Alhonmaki appeals from a decision of Lische J. whereby he was found guilty of having the care or control of a motor vehicle while his ability was impaired and having the care or control of a motor vehicle while his blood alcohol level was "over 80" contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. In accordance with the reasons that follow, the appeal is dismissed.
Background
2On November 5, 2016, the appellant was involved in a single-car collision. Shortly before 2 p.m. that day, a witness came across the appellant's vehicle that appeared to have hit a guardrail after failing to negotiate a curve. The witness pulled over, approached the driver side window and questioned the appellant. At trial, she described that the appellant was slurring his answers.
3The appellant was found in the driver's seat following the collision by a volunteer firefighter responding to a 911 call. In total, four fireman attended to the appellant. The evidence from the firefighters indicated that the appellant was "very difficult to understand", and "mumbling and grunting". One volunteer firefighter testified that he could smell alcohol coming from the appellant's breath. The other testified that he "detected a strong odour of alcohol". Three of these witnesses observed a bottle of Smirnoff Vodka in the vehicle. One of these witnesses observed the appellant vomit after he was removed from the vehicle.
4The two paramedics who attended to the appellant described him as being unresponsive and incomprehensible. One paramedic detected an odour of alcohol emanating from the appellant.
5Given the appellant's non-responsive state, he was taken Health Sciences North for treatment.
6Blood samples were taken from the appellant following his arrival at the hospital. A representative of the Centre for Forensic Science analysed the blood samples. It was determined that, at the time in question, the appellant had in the range of 362mgs to 403mgs of alcohol in 100mL of his blood. Based upon these readings, evidence was given that the appellant was extremely impaired at the time in question.
Issues
7The appellant advances three grounds for the appeal:
- The trial judge misapprehended the evidence;
- The trial judge erred in the application of the Canadian Charter of Rights and Freedoms to the facts of this case; and
- The police did not have reasonable and probable grounds to swear an Information to Obtain.
Analysis
Misapprehension of the evidence
8I have set out the issues as they were set out in the appellant's factum. During the course of argument, it became apparent that the deep issue in connection with the misapprehension of the evidence argument was whether or not the hospital was acting as a state agent for the police by obtaining a blood sample. The defence argued that the blood sample was taken as a result of police orders. At the outset of the appeal, counsel for the appellant agreed that if the investigating officer was simply asking for any spare or unused blood samples, then the hospital was not acting as a state agent, the accused's privacy rights would not have been violated and therefore there would have been no violation of s. 8 of the Charter.
9I will now undertake a review of the evidence on this point.
10After the appellant's admission to the hospital, he was attended to by Dr. Ansell. Dr. Ansell was initially confronted with the appellant's lack of consciousness. She performed a sternum rub in an attempt to wake him. The appellant remained unresponsive.
11At that time, Dr. Ansell noted signs of intoxication including the fact that the patient had an odour of alcohol. Dr. Ansell ordered a panel of blood work at 15:07 hours that included screening for intoxication. The appellant was discharged from the hospital at 19:00 hours following a diagnosis of intoxication.
12Dr. Ansell testified that she does not request a specific number of vials of blood, but rather just requests certain lab tests. Dr. Ansell testified that she does not order blood for police purposes.
13Michelle Thompson was the technician who received the instructions from Dr. Ansell to take the blood samples. In accordance with the instructions that she received, she did so.
14Constable Rainville was the investigating officer. He testified that he arrived at the hospital at 15:02 hours. At 15:15 hours, Constable Rainville attempted to speak with the appellant, but the appellant was unresponsive. While making efforts to speak with the appellant, Constable Rainville testified that he was able to detect a strong odour of an alcoholic beverage coming from the breath of the appellant. It was at that point that Constable Rainville "formed the suspicion that he [the appellant] was in care and control of a motor vehicle while under the influence of alcohol…"
15Constable Rainville testified that he requested that Ms. Thompson provide "unused extra blood samples to seal them." After observing Ms. Thompson take the blood samples at 15:48 hours, he accompanied Ms. Thompson to the lab where blood samples are kept. He applied police seals on the samples and they were placed in an area of the storage fridge designated for the police and the coroner.
16On December 2, 2016, Constable Rainville seized samples of the appellant's blood pursuant to a search warrant that had been issued.
17The appellant submits that the extra blood vials were required, not for medical treatment purposes, but rather for police purposes as part of a police investigation. The appellant points to different pieces of evidence in support of this position.
18First, considerable emphasis was placed upon notes made by Constable Rainville and a will-state prepared by him the day following this incident. Constable Rainville's notes read:
Advised hospital staff that I require blood samples regarding a criminal investigation and that I will seal the samples and return with a warrant for them.
19Constable Rainville's will-state reads as follows:
At 15:30 hours, I advised hospital staff that blood samples from Mr. Alhonmaki would be required for a criminal investigation.
20At trial, Constable Rainville testified that he told Ms. Thompson that he would need any unused extra blood samples. At that point in time, Ms. Thompson left to inquire of the policies and procedures with her supervisor while Constable Rainville went to his vehicle to obtain the seals.
21Second, the appellant also relies upon other evidence given by Ms. Thompson. She testified that she remembered "speaking with the officer and getting orders from the doctor and doing as [she] was told". She went on to testify "I believe I took three samples. I took two for testing for our lab and then I took a spare sample for the police officer". At the conclusion of her evidence in chief, Ms. Thompson stated the following:
When we do, like I said, with an alcohol level, we never use an alcohol wipe, 'cause we don't want the sample to be salty so we always cleanse with the water. And then we draw blood and then we bring it down. In this case, when an officer orders blood like that, I take the statement, I put my name down, I take him with me to the main lab before I hand it off, and he stays with the sample and I continue on.
22During the course of cross-examination, the following exchange took place:
Q: All right. Because you do remember in this instance, although perhaps it's a long time ago, taking vials, blood samples for the police.
A: I do, I do.
23Finally, the appellant relies on the evidence of Tracy Chabot and Christine Beaulac.
24Tracy Chabot is a laboratory technologist with the hospital. Ms. Chabot testified that a spare sample is drawn in case you need testing done later or if add-on testing is required on a sample that cannot be opened. According to Ms. Chabot, the spare vial is clearly labelled as a spare. She also said that blood samples are stored by the hospital for one week.
25Christine Beaulac is the manager of the Biochemistry Department at the hospital. She testified that samples that are sealed for use by the police or the coroner are placed in an area of the storage fridge that is designated for those samples and that such samples are kept for a period of six months. She further testified that once these samples have been placed into the special area designated solely for use by the police and coroner, the samples are not to be used for medical purposes.
26In summary, the appellant points to the fact that the officer's evidence at trial that he requested unused blood samples does not reflect the contents of his notes and his will-state. The appellant points to the fact that, during the course of cross-examination, Ms. Thompson indicated that she took "a spare sample for the police". The appellant also relies on the fact that once CFS seals had been placed on two of the blood vials, they were stored in the section of the storage fridge reserved for the police or the coroner. Finally, the appellant relies upon the evidence of Ms. Beaulac who testified that the samples contained in the police storage area were not to be touched and were not to be used for medical purposes.
27Counsel for the appellant argued that faced with all of this evidence, the trial judge misapprehended the evidence to such an extent that her decision must be overturned.
28I now turn to the trial judge's reasons in connection with the concerns that have been raised by the appellant. At page 20, the trial judge states:
Constable Rainville testified that he requested that Michelle Thompson provide the unused samples for a criminal investigation.
29At page 22 of the reasons for judgement, the trial judge states:
Michelle Thompson was employed at Health Sciences North as a technician 3 at the material time. Part of her job was to collect blood samples. She takes blood from 50 to 60 patients per shift. She has been doing her job for 15 years. She testified that she follows a doctor's orders to take blood. When asked if she recalled this incident, she indicated, "I took blood, I guess, and I remember speaking to the officer and getting orders from the doctor and doing what I was told." Michelle Thompson testified that Dr. Ansell requested samples. She took three samples; two for their lab, and one spare sample for the police.
30At page 23 of the reasons for judgment, the trial judge states:
This witness does not deal with the fridge where blood samples are stored. During her testimony, Ms. Thompson repeatedly indicated that she took the patient's blood as a result of being ordered to do so by the doctor. The court does note that in answering another question about the procedure when drawing blood, and using water instead of alcohol, she added, "In this case, when an officer orders blood like that." This statement is in direct opposition to her repeated earlier testimony directed as to who ordered that blood to be drawn. Clearly, based on her repeated testimony in this regard, and based on the testimony of Dr. Ansell and Constable Rainville, Ms. Thompson is taking Mr. Alhonmaki's blood at the request of Dr. Ansell for medical purposes.
The Court places less weight on Ms. Thompson's comment, which was added by her to a question not pertaining to who ordered the blood be drawn. The Court finds that she used the word "ordered" loosely in this context.
31At page 24 of the reasons for judgment, the trial judge states:
Tracy Chabot worked as a medical laboratory technologist at Health Sciences North in November of 2016. This witness did not recall the number of vials that she was dealing with but knows she only spun one vial. It was spun for sample stability. On the vials there is patient information. This witness did not recall any patient information. She believed she spun the chemistry spare vial.
32It is fair to say that the trial judge was faced with some evidence that was less than consistent. In my view when considered in its totality, the evidence cannot be considered to be conflicting. Whether or not the proper characterization is less than consistent or conflicting, the end result is the same. It is the duty of the trial judge to look at all of the evidence and then to make findings of fact. It is open to the trial judge to accept some, none or all of the evidence offered by a witness. That is what the trial judge did in this case.
33Findings of fact made by the trial judge are entitled to deference on appeal: R. v. D'Onofrio 2013 ONCA 145, at para. 1; R. v. Yi, 2007 ONCA 185, at para. 1; R. v. J.F., 2016 ONCA 900, at para. 7. An appeal judge should not substitute his or her own view of the evidence for the trial judge's findings of fact: R. v. Magagna (2003), 2003 CanLII 655 (ON CA), 173 C.C.C. (3d) 188 (Ont. C.A.), at para. 12. Appellate interference is only warranted when a trial judge's conclusion is unreasonable or not supported by the evidence: Criminal Code, s. 686(1)(a)(i); R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656.
34I do not agree with the appellant's submission that the trial judge misapprehended the evidence. It is my view that what is being urged upon this court is to review the evidence and come to a different conclusion. Because findings of fact made by the trial judge are entitled to deference, it is not open to me to do so absent palpable and overriding error, something that is not present in this case.
35In this case, the trial judge accepted the trial evidence of the police officer that he did not demand or order that a blood sample be taken for police purposes, but rather that he be provided with any unused or spare blood samples. The trial judge also found as a fact that Ms. Thompson took the blood samples at the request of Dr. Ansell and not the request of the police. The trial judge also found that Dr. Ansell did not specify the number of vials to be taken and did not order a vial for police purposes.
36Considerable emphasis was placed by the appellant on the fact that the officer's notes and will-state made no reference to "unused vials". According to the appellant, an inconsistency lies with the officer's evidence and his notes and will-state. The appellant asserts that the trial judge's reasons are insufficient to reconcile this difference. This, the appellant submits, is an error that amounts to a misapprehension of the evidence by the trial judge.
37In my view, the answer can be found in the fact that a trial judge is not mandated to refer to each and every aspect of the evidence in their reasons, there must only be a pathway to the finding. When considering whether the reasons show a clear analytical pathway to the finding, one must look at the whole of the reasons, including the trial judge's summary of the evidence: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 and R. v. R.E.M., 2008 SCC 51,[2008] 3 S.C.R. 3 at paras. 35, 37. It is my view that the evidence given by Constable Rainville is not inconsistent with his notes and will-state. At best, such difference may be characterized as a discrepancy. When a court is faced with a discrepancy, the court must make a finding of reliability. In this case, it was open to the trial judge to determine the appropriate weight to be given to the officer's trial evidence.
38Further, it must be remembered that an officer's notes are a testimonial aid. In R. v. Antoniak, [2007] O.J. No. 4816 (S.C.J), Garton J. commented at paras. 24-25:
It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.
The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis. The determination of that significance is entitled to deference on appeal.
39I have concluded that it was open to the trial judge to make the findings of fact that she did and in so doing, there was no misapprehension of the evidence.
Error in Applying the Charter
40Having found that the appellant did not meet the onus upon him at trial to establish that the hospital acted as a state agent, there is no s. 8 Charter breach. Accordingly, this ground of appeal must fail.
Lack of Reasonable and Probable Grounds Required to Swear and Information to Obtain
41In support of this ground of appeal, the appellant states that on the date when Constable Rainville applied for the warrant to obtain the appellant's blood samples, he did not have the grounds to arrest the appellant for any criminal offence. The appellant goes on to assert that "[i]t is, therefore, clear from the testimony that Cst. Rainville did not have the reasonable and probable grounds that an offence occurred required to obtain a warrant".
42A warrant is an investigative tool. Under s. 487 of the Criminal Code, a justice must be satisfied that there are reasonable and probable grounds for believing that an offence has been committed to issue a warrant. Reasonable grounds to believe has been defined as a credibly-based probability that exceeds suspicion, "but falls short of a balanced of probabilities": R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20 and see R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.
43I do not know what evidence formed the basis of Constable Rainville's grounds to obtain a warrant. The Information to Obtain was not filed on appeal or at trial. The only evidence before me is what is on the record. My review of the evidence on the record reveals that there was overwhelming objective evidence that Constable Rainville could have relied on to establish reasonable and probable grounds to believe that an offence had been committed. Many witnesses testified as to the smell of alcohol on the appellant's breath. Many witnesses testified about the presence of the bottle of vodka in the appellant's vehicle. Many witnesses testified about the fact that the appellant was unresponsive and incomprehensible both at the scene of the collision and at the hospital. The appellant vomited after being removed from the vehicle. There was no other apparent cause for the collision. The emergency doctor's diagnosis was intoxication. There was ample evidence to establish that there were reasonable and probable grounds for believing that an offence had been committed.
44Quite apart from this, the fact of the matter is that this ground of appeal was not properly litigated at trial. Accordingly, this court does not have jurisdiction to entertain this ground of appeal. The appellant failed to file the Information to Obtain and did not seek to bring a Garofoli application, but instead, he simply chose to question the officer about certain portions of the Information to Obtain.
45The trial judge addressed this attempt by the defence to challenge the warrant, at p. 32 of her reasons, in the following manner:
The defence argues that the information to obtain should be found to be invalid based on the allegation that the information to obtain was based on information obtained by the police based on Charter violating conduct. This court has found that this is not the case.
The defence also argues that the information to obtain may be found to have issued based on misleading information. During the trial, the defence took Constable Rainville to certain portions of the information to obtain but did not take him through everything and the information to obtain as not made an exhibit at the trial.
Based on the information solicited through Constable Rainville, the warrant does not appear to have been issued on misleading information. The warrant appears valid, based on evidence.
46Once again, the trial judge made certain findings of fact that must be given deference. This ground of appeal also fails for this reason.
Conclusion
47The appeal is dismissed in accordance with the reasons that have been provided.
The Honourable Mr. Justice R. Dan Cornell
Released: April 23, 2019