COURT FILE NO.: 17-A12698/17-A12529
DATE: 20191003
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
MATHIEW SHELDRICK Applicant
– and –
MATTHEW MCCARTHY Applicant
Tim Wightman, for the Respondent Crown
Genevieve McInnes, for Mathiew Sheldrick Mark Ertel, for Matthew McCarthy
HEARD: September 30, 2019
RULING
PHILLIPS J.
[1] Mathieu Sheldrick and Matthew McCarthy are charged with numerous Criminal Code driving offences arising out of a dirt bike collision that occurred on July 29, 2017.
[2] On August 14, 2017, an Ottawa Police officer swore two affidavits before a justice in support of ex parte applications for both a warrant to search for and seize blood taken from the accused men at hospital the night of the collision along with a production order for any medical records in the possession of the hospital as of that date.
[3] Both Mssrs. Sheldrick and McCarthy apply to this court for a ruling under s. 24(2) of the Canadian Charter of Rights and Freedoms [the “Charter”] that the blood and records are inadmissible at their upcoming trial as a result of breach of the s.8 Charter protection against unreasonable search and seizure.
[4] While several complaints were advanced, the principal defence argument is a facial attack on the Informations to Obtain (ITOs) to the effect that the affiant failed to assert a subjective belief in respect of having Reasonable and Probable Grounds (RPG). The law is clear that subjective belief in RPG is a precondition to the issuance of a search warrant or a production order. This is plain throughout s. 487 of the Criminal Code and has been repeatedly confirmed by the Ontario Court of Appeal in, for instance, R. v. Amare, 2014 ONSC 4119 and R. v. Lai, 2019 ONCA 420, to name just two.
[5] I should make clear at the outset that I am aware that a judicially authorized search warrant and/or production order is presumptively valid, lawful, and therefore reasonable. It falls to the applicants to establish otherwise on a balance of probabilities. I shall also note that the law is well settled to the effect that I am not to just impose my judgement over that of the issuing justice. Reasonable people can disagree. The question is whether there was information before the issuing justice on which the warrant and production order could have issued not whether that outcome should have resulted.
[6] I am also aware that I must read the affidavits as a cohesive whole, taking a common sense and reasonable approach. Police officers do not engage legal advice when doing their work and are not to be held to the “specificity and legal precision expected of the pleadings at the trial stage” (see: R. v. Sanchez (1994) 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357). In being fair to the affiant and the affidavit, I will act on the overall tenor of the document; in other words, its aggregate substance. This task is made easier by the fact that the document is both quite short as these things go and written in plain and clear language.
[7] As I say, the chief argument from both applicants is that the affiant simply, in any clear or meaningful way, failed to assert being possessed of RPG to believe that the warrant or production order would have some probability of resulting in evidence. In essence, it is argued that her affidavit reveals possession of only reasonable suspicion, not reasonable grounds. As has been explained by the Supreme Court of Canada in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 at paras. 27 and 32, the possibility that a state of affairs might occur characterizes the legal threshold of reasonable suspicion, whereas the probability that a state of affairs will occur characterizes the standard of reasonable grounds to believe.
[8] The Crown points me to the initial pages of the relevant affidavits. There, in boiler-plate, tick off boxes, the affiant purports to assert her subjective RPG belief. While I do not say that boiler plate is always useless and while I reiterate that I am aware that the officer’s work must be assessed as a whole, I cannot go along with the Crown on this point. It seems to me that the affiant reveals her actual state of mind RPG-wise when she actually puts things in her own words.
[9] In my judgment, a fair reading of the plain and ordinary meaning of the simple and easily understood language used by the affiant when she speaks to her subjective mind-set shows only that she was merely suspicious, seeing possibility that the blood and/or records would show alcohol consumption in a way falling short of belief in any probability of same. The words she chose throughout her summative section speaking specifically to her subjective state of mind in RPG are so equivocal and uncertain that they can only be read as showing her to be at the suspicion threshold only and not at the level of credibility-based probability the law requires. I can think of no other way to interpret the word choices in the section called “Grounds to Believe That Things Seized Will Afford Evidence of the Offences” (for instance: “I believe that a forensic toxicologist will be able to analyse the blood for alcohol and be able to detect its presence, if any, in the blood sample”[emphasis added]). It is my conclusion that the words chosen by the affiant are incompatible with and eclipse the boiler plate ticked off boxes in the documents’ early goings. That is the only conclusion that I can see as having been available to the issuing justice on the materials before her.
[10] The Crown argues that there is sufficient evidence conveyed by the affidavits such that the issuing justice and this Court now on review can come to its own conclusions about RPG. In my view, that would be a misapplication of the objective review function. An issuing or reviewing justice is to assess only whether the subjectively held grounds are objectively reasonable. No justice has any independent objective review power to find or read in subjective belief that is simply not there on facial analysis of an ITO. To emphasize this point, I will quote the Ontario Court of Appeal in Lai at p. 9. In referring to R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 at para. 29, the Court writes “a search without subjective grounds is illegal, even where objective grounds would have existed had the officer acted on those grounds”.
[11] It follows that this warrant and production order, obtained as they were through information from an informant apparently not possessed of subjective RPG were obtained in a manner inconsistent with s. 487 and s. 487.014 of the Criminal Code. Unauthorized by law, they were unreasonable and thus is incompatible with s. 8 of the Charter.
[12] Should the evidence be excluded as a result of the s. 8 breaches? Of course, exclusion is by no means automatic. I turn to the s. 24(2) analysis. In line with R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I must, in the context of all of the circumstances of the case, 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, (2) the impact of the breach on the Charter-protected interests of the accused and, (3) society’s interests in the adjudication of the case on its merits.
[13] I shall point out here before going further that I am obviously dealing with the warrant and the production order together. They were prepared by the same affiant, containing the same information and presented simultaneously to the same issuing justice. While I appreciate that they are two different initiatives, they are so connected that they strike me as essentially a package deal in the sense of constitutional compliance.
[14] In assessing the first Grant factor, the court considers the nature of the police conduct and whether it involves misconduct from which the court should seek to disassociate itself. My task is to essentially put the facts on a spectrum, recognizing that police conduct resulting in Charter breaches can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights.
[15] I do not assign male fides to the affiant in respect of making her application without the required subjective belief. In a real sense, it seems to me that her affidavit was so guileless as to be honest and made in good faith. The line between suspicion and probability is not always an easy one to discern. That said, there are three aspects to the state conduct here that I find most troubling. I will set them out in ascending importance.
[16] First, I am struck by the fact that the warrant affiant sought blood vials without having any evidence that such vials were at the place to be searched. All that was known to the affiant was that blood was taken over the night of July 29, 2017. One would presume that the blood was taken for medical purposes. What grounds did the police have to believe that any would be left over for collection by them two weeks after? This is not a case where the police asked the medical personnel to put some aside for later. On the evidence, it does not appear that the affiant had any basis to believe that any blood would still be in the hospital. A hospital is a health care facility. It is not a place to be searched lightly. A simple phone call could have informed the affiant about what she should have wanted to know – whether there was any evidence even there to be seized. I take her failure to investigate enough to have a basis to believe that blood taken on July 29, 2017 would be in the place to be searched on or after August 14, 2017 to be a failure to recognize the importance of the issues at play.
[17] A second, more serious, concern relates to the scope of the production order. The affiant was seeking medical records from the date of the July 29, 2017 hospital admission up to the date of the proposed order (August 14, 2017). It seems to me self-evident that any toxicology screening would have been done while the men were in the hospital being treated, likely the same night they were admitted. It is hard to see any likelihood that the blood would be tested for alcohol after treatment decisions were made or especially after discharge. It is also self-evident that the hospital records writ large would likely have included information about things other than alcohol in blood. Given the specific purpose of her use of these investigative steps, the affiant should have sought only records pertaining to alcohol content in the blood. The overbroad way in which the production order was drafted strikes me as indicative of a lack of concern about the privacy interests involved in the compelled disclosure of records of this sort.
[18] Finally, and most egregious, I find troubling the careless use of “cut and paste” in the preparation of the production order. A very significant section setting out the affiant’s personal beliefs in respect of grounds is simply transposed from the warrant application. This is a problem in this case because it means that that important section makes no sense to any reasonably attentive reader. At one point, incredibly, the production order application speaks in the future tense about the affiant’s plans to apply for a production order. The fact that it was prepared in such a way makes me wonder about how seriously the issues it involves were taken by the affiant. More importantly, I am left with real concern about the degree to which the materials were read and considered by the issuing justice.
[19] Turning to the second Grant factor, I will state the obvious and say that the state search of a health care centre involving seizure of blood and medical records done in a way contravening s. 8 of the Charter is a substantial infringement into anyone’s reasonable expectation of privacy. To the extent that the blood in question was taken and analysed on consent it was so only in respect of consent expressed or implied in respect to health care. If R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607 is to mean anything, it is that unlawfully obtaining blood and associated health records is a very serious violation of a person’s bodily integrity.
[20] I agree that the evidence in question is real evidence and that its exclusion will put an end to some counts and seriously impact the Crown’s ability to call relevant evidence in respect of others. I further agree that there is strong public interest in a trial on the merits here. Drinking and driving is a scourge that continues to cause significant social harm. I must remember that this case does not exist in a vacuum. The public expects that exclusion of evidence will be an exceptional outcome and that trial involving all relevant evidence will be the preferred norm.
[21] In the end, the Grant factors are a balancing exercise. No one heading is meant to be necessarily paramount. I find, on consideration of the totality of the circumstances, that I am very concerned about the fact that the issuing justice does not appear to have noticed that the materials before her contained such obvious cutting and pasting. As I have mentioned, as a result of the slipshod way the materials were drafted, an important section of the production order made no sense at all. In missing something so plain and significant, one must wonder about the degree to which either application was read and considered. That worries me greatly. On the evidence, it would appear that the application and ensuing judicial review was done in a way akin to a rubber stamp. I cannot help but conclude that the public would find this state of affairs to be troubling to the extreme.
[22] Ex parte applications like these are very important and impactful matters. The state, unopposed, is proposing to use its search and seizure powers to tread into areas where the citizenry has a high and reasonable expectation of privacy. In my view, the court must disassociate itself from this set of facts in order to maintain the public’s respect for the administration of the justice. I conclude that the first two Grant factors are so compelling that they outweigh the interest in a trial on the merits. The evidence obtained by both the warrant and the production order is inadmissible.
Mr. Justice K. Phillips
Released: October 03, 2019
COURT FILE NO.: 17-A12698/17-A12529
DATE: 20191003
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent Crown
– and –
MATHIEW SHELDRICK Applicant
– and –
MATTHEW MCCARTHY Applicant
RULING
Phillips J.
Released: October 03, 2019