Her Majesty the Queen v. Shane Campbell

COURT FILE NO.: 18-0538

DATE: 2019 03 08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

SHANE CAMPBELL Applicant

COUNSEL: T. Meehan, for the Crown A. Wine, for the Applicant

HEARD: January 23, 24, 28, 2019

BEFORE: LEMON J.

SEARCH WARRANT RULING

The Application

[1] Mr. Campbell seeks an order declaring that his privacy rights under s. 8 of the Canadian Charter of Rights and Freedoms were violated. He then asks that all of the evidence obtained as a result of that breach be excluded pursuant to s. 24(2).

[2] Mr. Campbell brought this application at the commencement of trial and time had been set aside to continue the trial depending on my ruling. After argument, I dismissed the application for reasons to follow. These are the reasons for that ruling.

Background

[3] Mr. Campbell faces 12 charges. Four with respect to causing bodily harm while driving impaired by alcohol, four with respect to causing bodily harm while driving with more than 80 milligrams of alcohol in one hundred milliliters of blood and four counts of causing bodily harm while driving dangerously. There are four counts of each offence because four different people were injured by Mr. Campbell’s alleged conduct.

[4] At the start of trial, Mr. Campbell pled guilty to causing bodily harm while driving dangerously. This application relates to blood sample evidence that the Crown wishes to enter at the trial of the remaining counts.

[5] As can be expected by the guilty plea, many of the facts are not in dispute.

[6] The defence factum acknowledges that on September 29, 2016, Mr. Campbell was driving a silver 2016 Infiniti QX60 on Highway 401. There were five occupants inside the vehicle. Mr. Campbell, driving at high speed, rear-ended a truck driving in the same lane. The resulting significant collision injured the occupants of both motor vehicles, some seriously.

[7] Mr. Campbell was extricated from the vehicle and transported to Guelph General Hospital. From there, he was air lifted to Sunnybrook General Hospital in Toronto. Blood samples were obtained from Mr. Campbell at Sunnybrook for medical purposes.

[8] On October 14, 2016, the O.P.P. obtained a warrant to seize a vial of the blood taken from Mr. Campbell as well as two production orders for Mr. Campbell’s medical records at both Guelph General Hospital and Sunnybrook General Hospital.

[9] One Information To Obtain was filed in support of the orders. The entire ITO was produced in this application record. The defence submits that certain facts must have been crucial to the finding that a warrant could be issued. Those facts are:

(a) a green bottle of St. Remy French Brandy was located on the ground at the rear of the Infiniti. The bottle neck was broken but the rest of the upright bottle was intact;

(b) 10-15 grams of green plant materials (suspected marijuana) with rolling papers were located in a plastic bag at the scene in a pair of black Adidas sweat pants;

(c) Mr. Campbell made an admission to a paramedic that he was “drinking”; and,

(d) a “faint odour” of alcohol was detected on Mr. Campbell’s breath.

[10] The Crown points out that the ITO also outlined that:

(a) the “high” speed of the Infiniti being drive by Mr. Campbell was determined by collision reconstruction experts to be up to 190 km/h in a 100 km/h zone;

(b) in addition to the 10-15 grams of green plant material located at the scene, police found a “powdery substance believed to be a narcotic”; and,

(c) prior to the collision, Mr. Campbell did not apply the brakes of the Infiniti until immediately prior to impact with the truck.

[11] The record for the application included the evidence from the preliminary inquiry as well as the viva voce evidence of Officers Ball and Bast.

The Issues

[12] Mr. Campbell submits that once appropriate excisions are made from the ITO, including the admission of “drinking,” and the observation of a “faint odour of alcohol”, the grounds for the warrant and production order are absent. At best, the police would have evidence of a serious motor vehicle accident; evidence that Mr. Campbell may have had access to alcohol (the brandy from the side of the road) and drugs (the marijuana found) but no evidence that Mr. Campbell was in possession of or consumed either of those substances and no evidence from any passenger that Mr. Campbell was under the influence.

[13] Although Mr. Campbell’s written argument laid out other issues, in submissions counsel conceded that there were no issues with respect to the voluntariness of Mr. Campbell’s statements or the manner in which the warrant was executed at either hospital.

Authorities

[14] The minimum requirement for the issuance of a search warrant is that the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search”: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168.

[15] In my role, I do not substitute my view for that of the authorizing judge. If, based on the record which was before the authorizing judge or as amplified on the review before me, I conclude that the authorizing judge could have granted the authorization, then I should not interfere. While “the existence of fraud, non-disclosure, misleading evidence or new evidence are all relevant … their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452.

[16] In R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 251, the Supreme Court confirmed that evidence obtained during a search under warrant had to be excluded under s. 24(2) of the Charter where the warrant was obtained by way of an ITO which contained facts solely within the knowledge of police as a result of a Charter violation.

[17] However, in circumstances where the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for reviewing courts to consider whether the warrant could have been issued had the improperly obtained facts been excised from the ITO. In that way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 52.

[18] In R. v. Zaher, 2014 ONSC 7565, Pomerance J. said:

While candour, balance, and fairness are critical, the police are ultimately held to a standard of reasonableness, not a standard of perfection. The issue is not whether the case has been proved beyond a reasonable doubt, or whether it can, even on a prima facie standard. The question is whether the evidence has established the requisite facts on the standard of credibly based probability. Simply stated, the police are not expected to prove a crime before they are entitled to investigate it.

The question is whether, after excising the erroneous information, or adding that which was improperly omitted, there remains sufficient reliable information to support an authorization or a warrant. As it was put by Justice LeBel, in Araujo,

“In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.” [Emphasis original.]

Admission of “Drinking”

[19] The defence factum summarizes the evidence in this area as follows.

[20] Jodie Hodgkinson, a flight paramedic for “Orange Ambulance,” was dispatched to attend Guelph General Hospital to transport Mr. Campbell from Guelph to Sunnybrook. Her evidence was received on this application solely from the preliminary inquiry transcript.

[21] Ms. Hodgkinson had contact with Mr. Campbell at the emergency room at Guelph General Hospital. She understood that Mr. Campbell had suffered “significant injuries.” Ms. Hodgkinson asked Mr. Campbell a series of questions, such as his name, how old he was, and whether he was in pain. Mr. Campbell responded that his name was “Shane”; he was “26”; and complained of “pain to his arm and that he was feeling cold.” Ms. Hodgkinson then asked Mr. Campbell if “he had been drinking.” The following comes from the Crown examination in chief at the preliminary inquiry:

Q. And then what did you ask him? A. If he had been drinking. Q. When you asked him if he had been drinking what did you mean by that? A. I wasn’t specific in the question but I was implying if he had been drinking any alcohol. Q. Okay. And what did he say when you asked him if he had been drinking? A. He said yes. Q. Did you ask him any other questions about that question? A. No.

[22] In cross-examination, the following exchange occurred about the “drinking” admission:

Q. Is that a routine question that you would ask a patient? A. No. Q. There was no follow-up question in terms of what he had been drinking? A. No. Q. How much he had been drinking? You are shaking your head no. A. No. Q. Over what period of time he had been drinking? A. No. Q. And certainly there seems to be something off because you don’t smell alcohol? A. No, I didn’t. Q. So just to be clear, in your head you’re asking him about alcohol consumption but you don’t make any follow-up inquiry about, okay, he said yes but I don’t smell alcohol, maybe I should ask some questions to make it clear that I’m asking him about alcohol. Nothing like that happened? A. No.

[23] Mr. Campbell argues that the questioning by Ms. Hodgkinson is so incomplete that it does not establish that Mr. Campbell admitted to drinking alcohol in his statement. He submits that I should find that all the admission established was that Mr. Campbell had consumed some fluids. Accordingly, this entry ought to be excised from the ITO.

Faint Odour of Alcohol

[24] The defence points out that a significant number of police witnesses and emergency personnel had contact with Mr. Campbell and none of them, except Officer Ball, detected the smell of alcohol on Mr. Campbell. Officer Ball indicated he detected a “faint odour of alcohol” on Mr. Campbell around the same time that Ms. Hodgkinson questioned Mr. Campbell about his “drinking”. The defence relies on the following between Crown counsel and Officer Ball from the preliminary inquiry.

Q. How far away from Mr. Campbell would you have been at that time when she was asking those questions? A. I was right next to him so maybe two inches, three inches. Q. And at that time what, if anything, did you smell? A. So I was right next to his head on his immediate right side and I also, and it’s common in cases like this, I moved my face and my nose right over top of his facial area and his mouth area. It was at that time I could detect a faint odour of an alcoholic beverage emanating from his breath. Q. And at that time are trying to determine whether he had been drinking? A. Oh absolutely. And again in a case like this I mean it’s always a possibility but our suspicion is raised, of course it’s a rear end collision and then you know, the bottle of alcohol was present so I’m trying to determine exactly. Sometimes we’re able to, sometimes we’re not.

[25] Mr. Campbell makes three submissions here.

[26] First, Mr. Campbell submits that Officer Ball’s examination of him with a view to detecting impairment while he was effectively bed-ridden in the emergency room in the hospital was a violation of his s. 8 privacy interests.

[27] Second, Mr. Campbell submits that the ITO overstates the significance of this evidence by qualifying it with the fact that Officer Ball is a “designated Intoxilyzer Technician and Drug Recognition Officer”. Mr. Campbell submits that whether Officer Ball is trained to use an Intoxilyzer or conduct drug recognition tests would not make him any more proficient than any other officer in knowing what alcohol smells like.

[28] Finally, Mr. Campbell submits the smell of a “faint odour of alcohol” at the hospital within the constellation of other facts relied upon, was of no consequence and could not support reasonable grounds to believe Mr. Campbell was impaired.

Analysis

Excision

[29] I start my analysis by considering the effect of excising the items in issue if I accept all of the defence submissions.

[30] Without the impugned items, it is conceded that the ITO still sets out that Mr. Campbell was speeding; excessively so. The ITO includes a picture of the demolished car after running into the truck moving in the same direction. The accident reconstruction evidence is that Mr. Campbell was driving at a speed of up to 190 km/h in a 100 km/h zone. Mr. Campbell did not brake until immediately before the accident. At the scene was a bottle of brandy, a green leafy substance consistent with marijuana and a white powdery substance consistent with cocaine.

[31] In my view, this is ample evidence on its own to support the warrant. In the circumstances, the accident suggests that Mr. Campbell was impaired by something. The apparent inability of Mr. Campbell to react to the presence of the other vehicle on the road contributed to the grounds to believe that Mr. Campbell had been driving while his ability was impaired by alcohol consumption or other cause. He was not yet charged and the evidence within the blood tests could eliminate or clarify what he was impaired by or what offence, if any, had been committed. The blood analysis could lead to evidence of such an offence.

[32] The submissions on the part of Mr. Campbell attempt to suggest that the evidence must be equivalent to trial evidence. The case law shows that to be incorrect; the police are not expected to prove a crime before they are entitled to investigate it.

[33] The officer preparing the ITO did not mislead the issuing justice. The ITO accurately sets out that the various intoxicants were in the vehicle but not necessarily in Mr. Campbell. It confirms that, of all the emergency service providers, only one detected an odour of alcohol. None of the passengers provided any evidence of drinking by Mr. Campbell. The justice could not have been misled as to the level of evidence leading to the request for a warrant.

[34] The defence focuses on each piece of evidence individually; the justice was required to look at all of the evidence to come to his decision. In totality, even without the evidence in issue, there was ample evidence to allow the warrant to be issued.

"Drinking"

[35] With respect to his answer that he had been “drinking”, Mr. Campbell might well have an argument at trial that a judge should have a reasonable doubt as to what Mr. Campbell meant when he answered Ms. Hodgkinson’s question. But again, that is not the standard to apply. It would be open to the issuing justice to include this piece of evidence in the mix with all of the other items set out above. In the normal course of conversation, this question could only mean drinking alcohol.

[36] I agree with the defence that ITO could have made the context of this statement more express. However, on the rest of the evidence set out in the ITO, it is not unreasonable for that to be left out. I do not see this oversight as serious, even in hindsight.

[37] I do not find it appropriate to excise Mr. Campbell’s answer that he had been drinking.

"Faint odour of alcohol"

[38] The evidence here is contradictory between Ms. Hodgkinson and Officer Ball as well as between Officer Ball and Officer Bast. While the officers were examined and cross-examined before me, I was provided with only the transcript of Ms. Hodgkinson’s evidence. I am hesitant to make a finding against her without the discrepancy put to her directly. I am not certain that anything turns on the discrepancy between Officers Ball and Bast.

[39] The application is brought by Mr. Campbell and the onus is on him to prove the facts on a balance of probabilities. I suspect that the analysis of the evidence will not be to his benefit. For the purposes of the application, I need not go through that analysis.

[40] Mr. Campbell submits that Officer Ball’s evidence is the best Mr. Campbell could hope for. I accept that. On that basis, I need not make any credibility findings. Taking the evidence at its highest, I do not find that Mr. Campbell can be successful on this argument.

[41] In my view, this evidence, “within the constellation of other facts relied upon” as the defence puts it, could be of consequence and could support reasonable grounds to believe Mr. Campbell was impaired. The constellation of other facts are the speeding, the manner of the collision and the various intoxicants at the scene. On its own, “the faint odour of alcohol” may not prove a case, but combined with the other factors, it is certainly something that the justice could rely upon to provide reasonable and probable grounds to believe that an offence had been committed and that there is evidence to be found at the place of the search. I do not find that this supports excising the breath evidence.

[42] The defence submits that the officer had a “confirmation bias” given his experience and expertise. It is argued that since Officer Ball was sent to find evidence of impairment at the hospital, I should not be surprised that he found some. However, Mr. Campbell also submits that the officer’s experience and expertise were used to give greater credence to his evidence. All of that might make for an interesting issue at trial but that evidence was fairly put before the issuing justice. The justice could not be misled about the extent of the evidence with respect to the smell of alcohol; it was clear that Officer Ball was the only one who made that observation. The basis to consider “confirmation bias” was before the issuing justice; that was the officer’s experience and background. The justice was in a position to consider the evidence of the odour of alcohol along with the other evidence. I do not find that this supports excising the breath evidence.

[43] The centre of Mr. Campbell’s submission is that he had his s. 8 rights breached when Office Ball leaned over him to smell his breath. Mr. Campbell submits that the officer was in error in being so close to him during his medical care. He submits that Officer Ball invaded his privacy by bending over him while he was helpless in his hospital bed. Officer Ball stood close by and made notes as the paramedic asked questions relating to his health. Mr. Campbell submits that too was a breach of his privacy.

[44] Both Officer Ball and Ms. Hodgkinson denied that she was assisting the officer in collecting evidence for the police. There is no evidence otherwise.

[45] Ms. Hodgkinson said that Officer Ball was some feet away from the bed at all times. Officer Ball said that he was at the bed and opposite Ms. Hodgkinson while making his observations and listening to the questions and answers. As set out above, I accept his evidence; it is the best for the defence. The defence concedes that if I were to accept Ms. Hodgkinson’s evidence, Mr. Campbell’s argument fails since the officer would not have been intruding on Mr. Campbell’s privacy.

[46] The defence relies upon R. v. Schneider, 2013 ONCJ 762; R. v. Dersch 1993 CanLII 32 (SCC), [1993] 3 S.C.R. 768; and R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417 to support his argument. In Dyment, La Forest J., at pp. 433-434, outlines that the Courts must ensure that privacy interests of vulnerable individuals in a hospital setting are not compromised by loose agreements between hospital staff and law enforcement officials :

… This is obviously necessary if one considers the vulnerability of the individual in such circumstances. He is forced to reveal information of a most intimate character and to permit invasions of his body if he is to protect his life or health. Recent trends in health care exacerbate the problems relating to privacy in the medical context, particularly in light of the health-team approach in an institutional setting and modern health information systems. If the health-team approach gives a patient easy access to a wide range of medical services, it inevitably results in the fragmentation of the classical doctor-patient relationship among a team of medical and para-medical personnel. The dehumanization that can result has led some hospitals in the United States to appoint an ombudsman for patients. 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. [Emphasis added by La Forest J.]

Under these circumstances, the demands for the protection of personal privacy become more insistent, a truth that has been recognized by governments. I look upon the Hospitals Act and its regulations not so much as justifying the need for privacy in this case but rather as a testimony that such protection is required. Under these circumstances, the courts must be especially alert to prevent undue incursions into the private lives of individuals by loose arrangements between hospital personnel and law enforcement officers. The Charter, it will be remembered, guarantees the right to be secure against unreasonable searches and seizures.

[47] However, those cases can be distinguished from the case here. I have found no willing participation of the medical staff here or co-opting of those staff by the police. There is no evidence that Officer Ball impeded the medical care or was asked to leave the area. Officer Ball did nothing more than he could have at a routine traffic stop. He took nothing from Mr. Campbell or his care providers. On those facts, I cannot find a breach of Mr. Campbell’s rights to privacy.

[48] However, assuming that Officer Ball breached Mr. Campbell’s Charter rights, I should still carry out a Grant analysis pursuant to s. 24(2) of the Charter to determine whether the evidence of “faint odour of alcohol” should be excised from the ITO: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. While I have found no breach by the officer’s conduct, I concede that others may think otherwise. The defence has persuaded me that it draws close to the line.

[49] The first factor is to consider the seriousness of the officer’s conduct. I do not find this to be a serious breach. The conduct was momentary. There is no evidence that Officer Ball interfered with any medical care. The effort to make the observation was little more than is permissible at a roadside stop, if that. I have no evidence that this is a common practice. That supports the admission of the evidence.

[50] The second factor to consider is the impact of the conduct on Mr. Campbell’s Charter rights. The taking of the breath sample had a moderate impact on Mr. Campbell. He should expect to be able to provide answers and seek treatment without the involvement of the police, particularly when he may have been unconscious for some of the time. However, as I said above, the conduct was momentary. Mr. Campbell was in the “emergency triage area” which I take to be less private than a hospital room. There were others around him. His privacy was limited in any event.

[51] Finally, I must consider society’s interest in adjudicating the case on its merits. This bit of information was not likely, on its own, to support the warrant. Removing this evidence from the ITO would not render the warrant invalid. But for this breach, the defence does not suggest that the taking of the blood samples breached any rights of Mr. Campbell. That supports the admission of the evidence.

[52] Looking only at the breath test within the ITO, the exclusion of the breath evidence would not have any effect on the Crown’s case. That supports the exclusion of the breath evidence to remind the police of the accused’s rights within a hospital setting. However, Mr. Campbell submits that this breach should lead to the exclusion of the blood evidence. The blood evidence is objective and valuable evidence for these serious charges. While not specifically admitted, it seems unlikely that the Crown could proceed further without this evidence. That supports the admission of the evidence.

[53] Since all of those factors support the admission of the evidence, I would not exclude the evidence on the basis of the breach as alleged by Mr. Campbell.

[54] Accordingly, the application is dismissed.

Lemon J.

Released: March 8, 2019