PETERBOROUGH COURT FILE NO.: CR-19-1519
DATE: 20201030
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER ASHTON
Applicant
David Parke, for the Crown
Mallory Laurie, for the Applicant
HEARD: September 24, 2020
RULING ON SECTION 8 APPLICATION
LEIBOVICH J.
[1] Christopher Ashton is charged with the offence of impaired operation of a motor vehicle causing death, contrary to section 320.14(3) of the Criminal Code of Canada. He is further charged with driving while disqualified and three counts of failure to comply with a recognizance. The offences arise out of a motor vehicle collision on March 13, 2019 that resulted in the death of Carolyn Clement.
[2] Mr. Ashton seeks to have the analysis done on his blood excluded pursuant to section 24(2) of the Charter. The blood was taken by hospital staff for medical purposes and was obtained by the police pursuant to a search warrant. The defence alleges that there were two s. 8 breaches that compel the exclusion of the evidence. The defence submits that the affiant misled the issuing justice by not providing full, fair, and frank disclosure. The affiant failed to include all material information in the ITO, misled the issuing justice on critical points, and used bald assertions and conclusory opinions not supported by any evidence. In addition, the officer breached the applicant’s s. 8 rights when he affixed a Centre of Forensic Science (CFS) seal to the vial of blood on March 13, 2019 as he did not have grounds to believe the offence of impaired driving had been committed. It is the Crown’s position that the affiant did not purposefully mislead the issuing justice. Any good-faith errors or mistakes by the affiant can be excised from the warrant, leaving a more than sufficient basis upon which the warrant could have been issued. The placement of an identifying tag on a vial of blood taken by, and left in the possession of, the hospital is not a ‘seizure’ by the police pursuant to s. 8. Even if it is a seizure it is not an unreasonable one. Finally, even if there has been a breach of section 8 the evidence should still be admitted.
Facts Pertaining to the Section 8 Application
[3] No witnesses were called at the application, but the testimony of the affiant from the preliminary inquiry was filed at the hearing. In addition, the audio statements of two witnesses and the collision reconstruction report were filed.
[4] On March 13, 2019, at approximately 4:09 p.m., Mr. Ashton was operating his Honda Civic, which crossed the center line of Highway 28 and collided with a Toyota Yaris. Ms. Clements, the driver of the Toyota Yaris, died as a result. Mr. Ashton was driving northbound. The collision was in the southbound lane.
[5] Two civilians, Ronald Windover and Richard Strabac, arrived on scene and attempted to assist. The paramedics and the police arrived shortly thereafter. Mr. Ashton was transported to the hospital. The ambulance arrived at 5:59 p.m., and PC Lafreniere placed the applicant under arrest at 6:02 p.m. for driving while disqualified, and breach of a recognizance.
[6] After placing Mr. Ashton under arrest, PC Lafreniere spoke to a nurse about sealing a vial of blood that was taken by medical staff from Mr. Ashton. The officer placed a CFS label on the blood and was advised by the nurse that it would remain in the hospital storage.
[7] PC Lafreniere continued his investigation and on April 3, 2019, he sought and obtained a warrant to obtain Mr. Ashton’s blood from the hospital. The blood was analyzed, and the Centre of Forensic Sciences determined that Mr. Ashton had methamphetamine in his blood when he was in the fatal car crash that killed Carolyn Clement. The law deems it to be a criminal offence for a driver of a motor vehicle to have any methamphetamine in their system while operating a motor vehicle
The Information to Obtain (ITO)
[8] The ITO is broken into eight sections: 1) investigative sources; 2) involved persons; 3) overview; 4) background of the investigation; 5) grounds to believe an offence has been committed; 6) grounds to believe the things seized will afford evidence of the offence 7) grounds to believe the things sought for are presently at the place to be searched; and 8) conclusion.
[9] In the ITO, the affiant referenced information provided by Mr. Windover, one of the civilians who arrived on the scene. The applicant is concerned with the inclusion of Mr. Windover’s comment that the applicant appeared to be “strung out”. The ITO reads as follows:
PC Lafreniere contacted Ron Windover by telephone on the way to the hospital. Windover advised PC Lafreniere that he arrived on scene after the collision had occurred and did not witness it happen. Windover advised he had conversation with ASHTON, who advised he was driving the Honda and heard a big boom and claimed to not know what happened. Windover advised PC Lafreniere that he observed ASHTON going back and forth between the driver's seat and the front passenger seat on foot. Windover advised that Richard Strabac was with him during the incident.
On the 1st of April 2019 at 1:45 PM, PC Lafreniere reviewed an audio statement conducted by PC Gray with witness Ron Windover. Windover advised he was with Richard Strabac southbound on Highway 28 when they came across the collision scene. He observed ASHTON to be acting 'strung out', half falling down walking to and from the driver seat of the Honda civic involved in the collision. He asked if ASHTON had a phone to call 911, he replied that he did not. ASHTON advised that he didn't know how the accident happened, he just remembers a 'big boom'.
[10] The April 1, 2019 audio interview was included in the application. In that interview, Mr. Windover stated:
‘the driver, the man was sort of running back and forth sort of out of the car.. maybe 20ft.. then back in, half-falling down type of thing, you know, you could tell he was sorta hurt’.
“He didn’t know what happened, just a big boom, that was it”
P.C. Gray: “did you notice anything odd about him?”
Windover: “he was strung out, I’ll be honest, and that could possibly be... I didn’t smell any alcohol on him”.
P.C. Gray “What do you mean strung out?”.
Windover: “Hyper… like stressed out, …anyone would be stressed out, almost just killed someone. He was going back and forth back and forth that type of thing Maybe not using the right word. He was stressed’”
P.C. Gray asked if he thought Ashton was under the influence.
Windover: “I don’t know, I didn’t smell anything but nowadays you don’t have to smell something … I can’t say for sure.. his eyes weren’t going anywhere.. He wasn’t staggering anywhere. His legs were sore..
- “He was hyper”.
[11] PC Lafreniere also referenced the opinion of Mr. Docherty, the applicant’s supervisor, that the applicant has a substance abuse problem. The information to obtain states as follows:
Docherty advises:
• He has been ASHTON' s direct supervisor for the 3 years they have worked together;
• Docherty advises he believes ASHTON has a substance abuse problem;
• He is aware of him being charged in 2016 for possession of crack cocaine by the Peterborough Police.
• ASHTON has been on a downward spiral since the time he re-united with his girlfriend Shawna.
• Advises ASHTON is not present and has no focus and it's been that way for the last 9 months approximately
[12] The audio interview with Mr. Docherty, which was conducted by PC Lafreniere, was included in the application. Mr. Docherty stated:
“in the last year or so he has gone downhill….”
Since February March last year, [Ashton has been] trending downhill… if not for the fact that he feels bad for him would probably have let him go in the past couple of weeks or so…. not showing up to work, being late consistently..” “so we’ve been concerned falling back into habits or something’…
“not sure if it’s just driving down from Bancroft everyday.. he’s just not present anymore…,not focused on the job, he struggles to function”
Officer: “habits?”
Mr. Docherty: “Used to be here all the time…now he’s not functioning for whatever reason…I’m under the impression he had some substance issues in the past, I don’t know if he currently does…… He had an incident with Peterborough local where he been picked-up up for possession of crack cocaine and such”.
[13] The applicant is concerned with the reference in the ITO that there was no steering input prior to the collision. The ITO states:
On the 18th of March 2019 at 4:00 PM, PC Lafreniere attended the Peterborough OPP forensic identification services building where PC Wickson and PC Shaw were completing a mechanical examination and computer module download of the Honda Civic being operated by ASHTON at the time of the collision. PC Lafreniere was advised by those officers:
• There were no mechanical defects with the car and it was in proper working condition, eliminating the possibility of a mechanical defect causing the collision.
• There was no braking by the driver of the vehicle prior to the collision.
• There was no steering input by the operator prior to the collision. The vehicle speed was determined to be approximately 89 kilometres an hour at the time of the impact, eliminating excessive speed as a cause of the collision.
[14] The collision reconstruction report was completed in June 2019. It states at pp. 22 and 26:
Therefore at the collision event, the Honda was travelling at 89 km/h and there was no pre-impact braking as the Service Brake was “Off” and there was no ABS Activity. The Honda had the cruise control engaged as there was a difference between the PC. Derived Accelerator Pedal Position (40%) and the Accelerator pedal Position (0%). The speed and the Engine RPM were consistent for the 5.0 seconds. The driver turned the steering wheel to the right at the last second as the Steering Input went from 0° to -10° and -35° in the last two data samples.
The Honda was travelling a consistent 89 km/h prior to the collision. There was no pre-impact braking but there was a sudden steering movement to the right which indicated that the driver reacted at the last moment.
[15] On this application, PC Lafreniere’s notes were filed, on consent, that he made on March 18, 2019, during his attendance at the examination of Mr. Ashton’s car. His notebook states, ‘March 18, 1505 – ‘ident Wicksen + Shaw, adv veh had no brakng input, no steerng input before collision @89 km/hr’
[16] The affiant’s conclusions are set at the end of the information to obtain. They are:
The applicant was driving northbound when it crossed the centre line and hit the victim’s car in the southbound lane;
The applicant did not brake;
The applicant’s car had no mechanical defects;
There was no active weather at play at the time of the collision;
The applicant self medicates with drugs to deal with back pain;
The applicant had the opportunity when he arrived at work and when he left work to consume drugs.
The applicant has a substance abuse problem dating back 15 years. [The ITO sets out his criminal record and charges in this regard and the affiant’s personal interactions with the applicant.]
The applicant was impaired by drugs and caused the collision. The affiant stated:
I believe that on the 13th of March 2019, Christopher ASHTON was operating the Honda Civic car that collided with Carolyn CLEMENT driving her car, killing her. I also believe that ASHTON caused the collision while impaired by a drug. I can't think of another explanation based on the grounds presented, as other options have been eliminated. I believe ASHTON to have a substance abuse problem dating back over 15 years. I have firsthand knowledge of ASHTON having broken his back, and he admits he is in constant pain from it. I believe he uses drugs as a means to self-medicate to dull that pain.
I believe that ASHTON self-medicates using drugs as the result of a painful back injury, and I don't believe he can function without them.
I believe that obtaining his medical records, his laboratory results and a vial of his blood to by analyze will afford evidence of the noted offence. I therefore pray that a warrant for his medical records at the Peterborough Regional Health Center be granted as well as a warrant for his laboratory records and vial of blood at the Meditech laboratory at the Peterborough Regional Health Centre be granted.
Placing the CFS Seal
[17] The affiant testified at the preliminary inquiry. His evidence was filed at this application. He testified that he arrested the applicant at 6:02 p.m., at the hospital, for breach of recognizance (x2) and driving while disqualified. The affiant saw the nurses interact with the applicant. At 6:27 p.m., they took some blood from him for medical purposes. The blood was not taken pursuant to any police demand or request. Five vials of blood were taken and given to the lab technicians. The affiant travelled with them. He told them that he wished to place a seal on the vial that they were least likely to use. The affiant said that a vial of blood with the applicant’s name was presented to him. He placed a Centre of Forensic Science (CFS) seal overtop the lid. He stated:
That seal was secured overtop of the vial, at which point Debbie Jenkins, who had provided it to me, the lab technician, she had kept it in her hand. I put the vial(sic) overtop of it, or the seal overtop of it.
[18] The affiant said that the technician took the vial and placed it in a fridge or freezer for storage and preservation. The affiant attended the lab on April 4, 2019, provided the lab technician with the warrant, and the vial of blood was given to him.
[19] The affiant was cross-examined at the preliminary inquiry. When he placed the applicant under arrest, he was still investigating the cause of the accident. He did not make a blood demand of the applicant at the hospital because the applicant was not under arrest for impaired driving at the time, and he was not investigating him at the time for possible impairment. The affiant was a drug recognition expert, but he did not conduct any roadside screening tests as the applicant was lying flat on a hospital bed throughout their interaction.
Law and Analysis
[20] This application raises the following issues:
Should the search warrant not have been issued having regard to the alleged errors, misleading statements omissions and resort to speculation?
Was the search unreasonable because the police placed a CFS label on the applicant’s vial of blood in the hospital, prior to the issuance of the warrant and before there were any grounds to believe that the accused was impaired?; and
Depending on the answers to the first two questions should the toxicology assessment of Mr. Ashton’s blood be excluded at trial?
Issue #1: The attack on the search warrant
[21] The applicant has made a facial and sub-facial attack on the search warrant. Counsel argues that when you excise out the misleading and false information all that is left is bald conclusory statements that could not support the issuance of the warrant. In addition, the applicant submits that the deliberately misleading statements was an attempt to undermine the pre-authorization process.
[22] A warrant is presumed to be valid and the onus is on the party seeking to invalidate it: R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549; R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376. The scope of warrant review is narrow. It is not a de novo hearing. The reviewing judge does not substitute his or her view for that of the issuing judge. “[T]he test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54; R v. McNeill, 2020 ONCA 313, [2020] O.J. No. 2282 at paras. 30-34.
The sub-facial attack
[23] The applicant has launched a sub-facial attack on the warrant. The reviewing court must exclude erroneous information included in the original information to obtain. Furthermore, the reviewing court may have reference to “amplification” evidence which is additional evidence presented at the voir dire to correct minor errors in the ITO, “so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.” As stated by Watt J.A. in R. v. Sadikov, at para. 38, sub-facial attacks do not expand the scope of the review:
Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para. 50; and Wilson, at para. 40. Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer: Araujo, at para. 51; and R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant: Araujo, at para. 51; and Garofoli, at p. 1452. The analysis is contextual: Araujo, at para. 54. The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the enabling warrant could have issued: Araujo, at para. 52.
[24] When conducting a review, the court must conduct a contextual analysis; R. v McNeil at para. 33. Inaccuracies in the information to obtain, “on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant: R. v. Araujo at para. 54. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review”: R. v. Sadikov, R. v. Garofoli, at p. 1452.
[25] The court has a residual discretion to set aside a warrant, where grounds still remain after the impugned parts have been excised, where the court is of the view that the errors were a deliberate attempt to undermine the pre-authorization process: R. v. Strauss, 2017 ONCA 628 at para. 25; R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused, [2017] S.C.C.A. No. 81, at para. 66. As stated by Watt J.A. in R. v. Paryniuk at para. 69:
What is clear, however, is that previous authority in this court has recognized 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), 2000 2457 (ON CA), 145 C.C.C. (3d) 119, at para. 31; Lahaie, at para. 40; Vivar, at para. 2. Courts of appeal in other provinces have reached the same conclusion: Bacon, at para. 27; Evans, at paras. 17, 19; 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, 92.
[26] The applicant makes four sub-facial attacks on the warrant:
The summary of Mr. Windover’s statement, in particular his comment that Mr. Ashton looked “strung out” in the ITO, is misleading;
The summary of Mr. Docherty’s statement, in particular his comment that Mr. Ashton has a drug problem, in the ITO, is false;
The reference in the ITO to there being no steering input in the applicant’s car before the collision is wrong; and
The affiant, who is a drug recognition expert and who was on the scene after the collision and interacted with the applicant, failed to include that he did not observe any indicia of impairment or find any drugs or drug paraphernalia.
Mr. Windover’s statement
[27] The applicant states that the affiant unfairly summarised Mr. Windover’s statement to make his comments look more sinister. Mr. Windover explained in the statement that when he described Mr. Ashton as strung out, he meant that Mr. Ashton looked hyper and stressed, yet that explanation does not appear in the information to obtain. The Crown submits that the affiant is not required to regurgitate each line in a witness’s statement and that each word that the affiant referenced is found in Mr. Windover’s statement.
[28] An affiant is not a scribe, but the duty to make full, frank, and fair disclosure of all material facts in the ITO supporting the request includes the duty not to omit material facts. As LeBel J. said in R. v. Morelli, at para. 58:
In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. [Italics in original.]
[29] I agree with Crown counsel that the affiant’s overall description of Mr. Windover’s statement is accurate, except he fell short when he referenced Mr. Windover’s observation that Mr. Ashton was strung out. I agree with the applicant that the reference to Mr. Ashton being strung out without the qualifier that the witness said he meant hyper and/or stressed is selective and has the potential to leave the erroneous impression that the witness meant that the applicant was intoxicated.
[30] I would excise the phrase strung out from the information to obtain. I will deal with the issue of amplification later on in these reasons.
Mr. Docherty’s statement
[31] The affiant stated that Mr. Docherty said that the applicant has a substance abuse problem. The applicant submits, and the Crown agrees, that Mr. Docherty stated that the applicant had a substance abuse problem and was unsure if he currently has one. The Crown submits that it is evident from his statement to the police that Mr. Docherty had concerns that the applicant had a current substance abuse problem. I agree that it would be appropriate to excise out the phrase has a substance abuse problem. I will address the issue of amplification later on in these reasons.
Input to the steering
[32] The applicant submits that the affiant stated that there was no steering input prior to the collision but the final mechanical inspection findings showed that there was some steering at the last moment. There is no dispute that there is a conflict between what is contained in the information to obtain, in this regard, and the final reconstruction report. But I agree with the Crown that it is of no moment. Any mistakes by the affiant are measured against the affiant’s reasonable belief at the time that the information to obtain was composed, “not the ultimate truth of the facts stated.”: World Bank Group v. Wallace, 2016 SCC 15, [ 2016] 1 S.C.R. 207 at paras. 121- 122; R. v. Paryniuk at para. 47. It seems, from the material filed at this hearing, that the affiant’s understanding that there was no steering input came from his conversation with Officers Wickson and Shaw on March 18, 2019. It seems that the affiant received only a brief summary which is recorded in his notes as “no steerng input before collision @89 km/hr’”. It is unknown if the affiant misunderstood or this is what Officers Wickson and Shaw told him at the time. The full reconstruction report, with all the technical data and details, including the fact that there was some brief steering input, was completed on June 15, 2019, long after the ITO was submitted and approved by the issuing justice. There is nothing to indicate that the affiant did not believe at the time he composed the ITO that there was no steering input. There is no basis to excise the line, “[t]here was no steering input by the operator”.
[33] I also note that there is only one brief reference to there being no steering input in the information to obtain. Afterwards, the affiant stated that the applicant did not “steer away” from the southbound Toyota Yaris, which is correct.
Lack of signs of impairment
[34] The applicant states that the affiant, who is a drug recognition expert and who was on the scene, should have included in the information to obtain that he did not see any signs of impairment nor did he find any drugs or drug paraphernalia at the scene. I disagree. The affiant did not state that he saw evidence of impairment or that he found any drug paraphernalia. The justice could only assume that there were no such observations or findings. This was not one of those rare circumstances that required the affiant to express a negative finding. As stated by Blair J.A. in R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787 at para. 50:
Although there may be circumstances in which the duty to provide full and fair disclosure will require an applicant for a search warrant to negative something unseen or not done, I would expect such circumstances to arise infrequently. In most cases, the absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen, not heard or not done. As Doherty J.A. observed in R. v. Colbourne (2001), 2001 4711 (ON CA), 149 O.A.C. 132 (C.A.), at para. 43:
Constable Henry described the indicia of impairment that he observed. It was implicit that he did not observe any other indicia of impairment. His failure to specifically enumerate the things he did not see does not constitute non-disclosure.
Facial attack on the warrant
[35] The applicant complains about the conclusory language set out in portions of the information to obtain. In particular, the applicant submits at para. 28ii of the defence factum:
Additionally, there were numerous bald assertions and conclusory opinions provided by the affiant in the ITO, which were not based on any evidentiary foundation including:
It’s believed he self-medicated through various drugs
The Affiant believes the 1 minute and 15 seconds the Applicant sat in his car before leaving work was “ample time and opportunity” to ingest contraband drugs to cope with his pain
The affiant stated that “[someone] in a proper state of mind would not sit in their car while already late unless they had to do something to help them cope with their day”.
This is a bald and conclusory opinion, not based in any evidentiary foundation.
[36] In my view, there is nothing inappropriate in the affiant setting out his conclusions. The applicant is not alleging any factual mistakes known by the officer at the time he set out his conclusions. In other words, there is no challenge to these facts:
The affiant, a few weeks earlier, after receiving a traffic complaint about an erratic Honda Accord, tracked down the applicant.
The applicant was in possession of a Percocet and was charged for possession.
Percocet is a pain killer;
The applicant complained to the affiant that he had broken his back ten years ago;
The affiant saw Mr. Ashton’s back get progressively worse during the 24 hours the applicant was in custody and observed him moving more slowly, hunched over and differently then at the point of arrest.
[37] Against this factual back drop, the officer is entitled to conclude that the applicant was self-medicating using drugs and that the applicant’s pain grew as his medication wore off. Similarly, the officer is entitled to conclude based on his factual observations of the time the applicant spent in his car upon arriving at work, before starting at work, and before leaving work, that he had the opportunity to ingest drugs. More critically, the basis for the affiant’s conclusions was laid out for the justice to make his or her own assessment.
[38] The applicant submits that there are other inferences that could be drawn, just like there are other inferences that could be drawn by the lack of any other explanation for the collision. This is correct, but it is not the task of the reviewing judge to choose among inferences. As stated by Watt J.A. in R. v. Sadikov at para. 88:
It is no part of the reviewing judge's mandate to determine whether she would issue the warrant on the basis of the amplified record. Nor is it the reviewing judge's role to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: Morelli, at para. 40.
Amplification
[39] As stated above, amplification is available to the Crown only where the erroneous information results from a simple error, not in respect to information placed before the issuing Justice that was deliberately false and misleading; R. v. Araujo, para. 57-59; R. v. Sadikov at para. 85.
[40] The applicant has submitted that the mistakes made by the affiant in summarizing Mr. Docherty’s and Mr. Windover’s evidence and omitting to point out the lack of evidence of impairment, in conjunction with the officer’s resort to conclusory language, were a deliberate attempt by the affiant to purposely mislead the issuing justice by pumping up threadbare evidence of impairment. I disagree. I do not see any deliberate attempt to mislead the issuing justice for the following reasons:
The mistakes were few and minor. The affiant should have either explained what Mr. Windover meant by “strung out” and the affiant should have said that Mr. Docherty believed that the applicant had a substance abuse disorder not that he has. But “[i]naccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead.” R. v. Sadikov, at para. 87;
It is evident from Mr. Docherty’s police statement that while he said he did not know if the applicant had a current substance abuse problem, that Mr. Docherty was concerned that the applicant did. It was not Mr. Docherty’s belief that the applicant did not have a current problem. So, while the affiant was incorrect in his summary of the evidence on this point, in the circumstances the error was not an egregious one or completely inconsistent with Mr. Docherty’s evidence;
Similarly, while the affiant’s description of Mr. Windover’s view of the applicant was too selective and incomplete, it was not completely inconsistent with a more complete summary of the witness’ evidence on this point. The witness said he was unsure if the applicant was intoxicated and by strung out he meant that the applicant was hyper or stressed. And while I found that the term “strung out” could have misled the justice into automatically inferring that the applicant was impaired, he may not have, as the term has a variety of meanings; and
None of these two pieces of evidence were relied upon by the affiant when he set out his conclusion regarding why he believed the applicant was impaired.
[41] Therefore, I will excise Mr. Docherty’s statement that the applicant “has a substance abuse problem” and replace it with Mr. Docherty stated the applicant “had a substance abuse record but was unsure if he currently had one.” I would also amplify the record with respect to Mr. Windover and add that Mr. Windover in describing Mr. Ashton as strung out meant that Mr. Ashton was hyper or stressed and that he had a reason to be stressed.
Conclusion on Issue #1
[42] The applicant submits that there was not “sufficient credible and reliable evidence to find reasonable and probable grounds to believe that the Applicant was impaired while operating his motor vehicle on March 13, 2019… speculation is not enough.”
[43] The question to be determined by this Court is whether based on the amplified record, the justice could have issued the warrant. To comply with the constitutional standard, this requires at the time of the granting of the authorization there must be reasonable grounds to believe that an offence has been or is being committed and that the authorization will afford evidence of the offence. Reasonable grounds to believe does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of “credibly-based probability”: In making this evaluation, the issuing justice must consider the ITO as a whole, in a “common sense, practical, non-technical way, and may draw reasonable inferences from its contents.”: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Vu, 2013 SCC 60, at para. 16; R. v. Sadikov at paras. 81 and 82; R. v. McNeil at paras. 32 and 33. As summarized recently in R. v. McNeil at paras. 32 and 33:
The standard of "reasonable grounds to believe" does not require proof on a balance of probabilities, but rather only a credibly-based probability: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; Sadikov, at para. 81. The ITO must provide "reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. ... If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued": Sadikov, at para. 81; see also R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.
In making this evaluation, the issuing justice considers the ITO as a whole, in a common sense, practical, non-technical way, and may draw reasonable inferences from its contents: Sadikov, at para. 82; Vu, at para. 16. The record on a facial challenge is limited to the ITO: Sadikov, at para. 37; R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.
[44] In my view, based on the amplified record, which only slightly modifies the record at first instance, the justice could have issued the warrant from the evidence set out in the information, for a number of factors:
The applicant was headed northbound and collided with the victim’s car in her southbound lane;
There was no evidence that inclement weather was an issue;
There was no evidence that there were any mechanical defects in the applicant’s car;
The applicant did not brake prior to the collision;
The applicant, apart from hearing a big boom, had no idea what happened;
The applicant had a lengthy history using drugs;
The affiant arrested the applicant 18 days prior to the offence for illegally possessing Percocet, after the police had received complaints of erratic driving;
Percocet is a pain killer;
The applicant complained to the affiant at that time of the earlier arrest that he had broken his back 10 years earlier. The applicant also complained about his back after the collision;
The affiant observed the applicant on the earlier arrest become more and more pained while in custody;
The affiant’s belief that the applicant was self-medicating to deal with his back pain is a reasonable belief in the circumstances;
The affiant’s belief that the applicant had, based on the affiant’s observation of the video from the applicant’s place of work, the opportunity to consume drugs prior to departing is a reasonable one in the circumstances; and
The affiant’s belief that the otherwise unexplained collision is explained by the applicant’s consumption of drugs to deal with his back pain is a reasonable one and meets the credibility-based probability standard.
Issue 2: The placing of the CFS seal
[45] The applicant submits that while the police are entitled to seal blood samples in anticipation of a warrant, they are not allowed to seal in all circumstances. If the police do not have grounds, then the placing of a seal is an unreasonable seizure and Charter violation. The applicant relies heavily on the decision of Latimer J. in R. v. Good, 2019 ONCJ 734. The Crown take the position that there was no seizure in this case, let alone an unreasonable one, as the hospital kept control of the vial and only released it to the police upon the presentation of the warrant. The Crown states that R. v. Good is inconsistent with the Court of Appeal’s decision in R. v. Gettins, [2003] O.J. No. 4758 which found that such seals are unobjectionable.
[46] I agree with the Crown that this area of the law has been decided by our Court of Appeal in R. v. Gettins. The police are entitled to affix a seal on an individual’s vial of blood to preserve that blood, in the event that a search warrant could be obtained at a subsequent date.
[47] In R. v. Gettins the officer returned to the hospital and sought to place CFS seals on four of the five vials of the blood that had been drawn. The nurse allowed the police to seal the remaining vials, provided that the doctor had no further need of the blood. The seals were placed on the vials, which were then placed in the lab refrigerator. Following further investigation, the officer obtained a search warrant for the vials of blood four days’ later.
[48] Weiler J.A. found that the placing of the CFS seals on the vials of the appellant’s blood amounted to a seizure. The question was whether the seizure was unreasonable. Weiler J. went through the decisions in R. v. Tessier (1990) 1990 11015 (ON CA), 58 C.C.C. (3d) 255 and R. v. Silveira 1995 89 (SCC), [1995] 2 S.C.R. 297. Weiler J.A. noted that a contextual analysis is important in assessing a person’s privacy interest. She stated:
By comparison, placing CFS seals on vials of the appellant's blood involves no interference with the spatial aspect of the appellant's privacy interests. There was no intimidation or interference with the appellant's dignity. The doctor and nurses in the hospital already knew that Const. Baillie was investigating the accident to see if alcohol was involved. There was no interference with the appellant's physical integrity because the blood had already been taken. The police officer's actions were brief, limited to sealing the vials of the accused's blood, and the vials remained under the control of the hospital in the event they were needed for medical purposes.
[49] Weiler J.A. found that the sealing of the vials of blood did not amount to an unreasonable search or seizure of the appellant because it did not interfere with the appellant's spatial interests, dignity, physical integrity, or his interest in controlling the release of information about himself.
[50] This issue was addressed again by the Court of Appeal in R. v. LaChappelle, 2007 ONCA 655, [2007] O.J. No. 3613. In that case, a nurse took five vials of blood for medical purposes. They were placed in a laboratory refrigerator and the officer placed CFS seals on the remaining vials. A hospital technician testified that if further medical tests had been needed, she could have broken the seals and used the vials. She also testified that vials of blood that are not necessary for medical purposes are ordinarily destroyed. Two days later, Detective Constable Scherer called the hospital and confirmed the existence of a blood chemistry report. He then obtained a search warrant to seize the vials and the report, which contained a blood/alcohol analysis. Rosenberg J.A. stated that:
The appellant submits that the act of Detective Constable Scherer in placing seals on the vials of blood that had originally been taken for medical purposes constituted an unreasonable seizure in violation of s. 8 of the Charter. The appellant points out that the evidence shows that but for Detective Constable Scherer's intervention, the blood samples would undoubtedly have been destroyed before the police could have lawfully obtained the evidence through a search warrant. This court has determined this issue against the position taken by the appellant on several occasions, most recently in R. v. Gettins (2003), 2003 9312 (ON CA), 181 C.C.C. (3d) 304 (Ont. C.A.). In Gettins, this court held that sealing vials of blood until a search warrant could be obtained, where, as here, the vials remained under the control of the hospital in the event they were needed for medical purposes, was not an unreasonable seizure.
[51] In R. v. Poisson, 2019 ONSC 1674 [ 2019] O.J. No. 1394, de Sa J. dealt with the issue as well. In that case, the police re-attended the hospital and placed seals on the vials of blood and placed them in a bio hazard bag marked “save for police”. The hospital had a general policy to set aside samples from motor vehicle collisions in case of a police investigation. De Sa J held at para. 56-58 that there was no Charter violation.
[52] I do not agree with Latimer J.’s comments in R. v. Good that the common thread in the appellate jurisprudence on this topic is that at the time of the seal there were reasonable grounds to believe that an offence had been committed. At the outset of R. v. Gettins, Weiler J.A., placed the issue before the court in a much broader context:
This appeal concerns whether the placing of Centre of Forensic Science (CFS) seals on vials containing the appellant's blood in order to preserve it for analysis in the event further investigation permitted a search warrant to be obtained was an unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c [ emphasis added].
[53] In addition, in R. v. Gettins, the court noted, that after the seal was placed the police conducted further investigation and then obtained a search warrant.
[54] The rationale for the court’s decision was their conclusion that the placing of a seal on a vial blood that had already been taken by the hospital for hospital purposes and that is left in the control of the hospital does not interfere with an individual spatial interests, dignity, physical integrity or his interest in controlling the release of information about himself.
[55] Requiring grounds to exist at the time of the sealing is unnecessary as the police can only gain control of the vial if they are in fact able to obtain a warrant. Or put another way obtaining the vial without a warrant would still be an unreasonable search even if reasonable grounds existed at the time a seal was placed.
[56] In this case, the only witness to the sealing and subsequent retrieval of the blood was PC Lafreniere. No one from the hospital testified. PC Lafreniere testified that after the blood was taken, he placed a seal on the vial while the technician held it[^1]. The technician then placed it in the fridge[^2]. Counsel for the applicant is correct that the police, at the time the label was affixed, did not have reasonable grounds to believe that the applicant was impaired. But it was also evident that the officer was still conducting his investigation and still, as he said at the preliminary inquiry, trying to determine the cause of the collision. The officer completed his investigation and applied successfully for a warrant three weeks later. He then returned to the hospital with the warrant and the hospital staff released the vial to him. In my view, as in R. v. Gettins and R. v. LaChappelle, where, as here, the vials remained under the control of the hospital in the event they were needed for medical purposes, the officer’s minimal placing of a seal, pending the possible authorization of a warrant did not interfere with the applicant’s private interests, and was not an unreasonable seizure.
Conclusion
[57] For the reasons set out above, I find that there was no breach of the applicant’s s. 8 rights. Accordingly, there is no need to address the third issue and conduct an analysis pursuant to section 24(2) of the Charter. The application is dismissed.
Justice H. Leibovich
Released: October 30, 2020
PETERBOROUGH COURT FILE NO.: CR-19-1519
DATE: 20201030
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER ASHTON
REASONS FOR ruling
Justice H. Leibovich
Released: October 30, 2020
[^1]: The Crown submits that this is not even a seizure given that the officer never took hold of it. I have addressed this issue on this application on the basis that this was a seizure in accordance with R. v. Gettins at para. 6. In my view this makes sense as the resolution of the issue should not be based on whether the police happen to hold the vial while placing the label or the hospital staff did.
[^2]: I note that the facts in this case are different than the ones found by Latimer J. in R. v. Good. In that case an official from the hospital testified that when a seal is placed the vials are kept separate and apart from other samples and kept for as long as the police wanted. The police in R. v. Goods came back seven weeks later with a warrant.