Court File and Parties

CITATION: R. v. Carter, 2026 ONSC 298

COURT FILE NO.: CR-24-30

DATE: 2026-01-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

BRITTANY CARTER

Defendant/Applicant

COUNSEL:

J. Melo and M. Michaud, for the Crown

M. Lacy, for the Defendant/Applicant

HEARD: December 8-12, 2025

PRE-TRIAL RULINGS

Table of Contents

Voluntariness Voir Dire. 4 Expert Voir Dire. 4 Ancillary Motions. 5 Issues. 5 Facts. 5 Positions of the Parties. 7 The Admissibility of the ACM Data. 7 (i) The Crown’s Position. 7 (ii) The Defence’s Position. 7 Admissibility of the Applicant’s ACR.. 8 (i) The Crown’s Position. 8 (ii) The Defence’s Position. 8 Summary of the Evidence on the Motion. 8 (i) Evidence of PC Kristina Brock. 8 Evidence from the Scene. 8 Post-Incident Conduct 9 Obtaining the Applicant’s ACR.. 10 (ii) The Evidence of PC Michael Arnold. 12 Original RTJ. 13 Resubmitted RTJ. 13 Returning to PC Arnold’s Evidence. 13 (iii) The Evidence of Sgt. Shawn Kivell 14 (iv) The Evidence of PC Jim Wallace. 16 (v) The Evidence of Kyle Godelie. 18 (vi) The Evidence of Miranda Scianitti 19 Overall Assessment of the Evidence. 19 Analysis. 20 Issue 1: The ACM Data Obtained from the Seized Jeep. 20 Applicable Legal Principles. 20 Application. 21 Failure of the Police to Comply with ss. 489.1 and 490. 22 Applicable Legal Principles. 22 Application. 23 Section 24(2) Analysis of the ACM Data. 23 Applicable Legal Principles. 23 Factor 1: The Seriousness of the Charter-Infringing Conduct 24 Factor 2: Impact of the breach on the Charter-Protected Rights of the Applicant 25 Factor 3: Society’s Interest in the Adjudication of the Case on its Merits. 25 Issue 2: Admissibility of the ACR and its Derivative Evidence. 26 PC Brock’s Actions as a “Search” Pursuant to s. 8 of the Charter. 26 Assessing the Applicant’s Reasonable Expectation of Privacy in the ACR.. 27 Impact of the Legislation. 29 Was the Search Lawful?. 29 Should the Evidence be Excluded under s. 24(2)?. 29 Grant Analysis for the ACR and the Derivative Evidence of the Use of the ACR.. 30 Factor 1: Seriousness of the Charter-Infringing Conduct 30 Factor 2: Impact of the Breach on the Charter-Protected Rights of the Applicant 31 Factor 3: Society’s Interest in the Adjudication of the Case on its Merits. 31 Balancing the Grant Factors. 32 The ACM Data. 32 The ACR and Derivative Evidence. 32 Conclusion. 33

MOSER J.

1This ruling relates to pre-trial applications for Ms. Brittany Carter (the “Applicant”), following evidence and submissions heard on December 8-12, 2025.

2The Applicant stands charged with six counts under the Criminal Code, R.S.C., 1985, c. C-46, in relation to a driving incident on May 13, 2023. The charges include one count of dangerous operation of a conveyance causing death and five counts of dangerous operation of a conveyance causing bodily harm.

3The court heard several motions in this matter, which include:

a. A voluntariness voir dire on the Applicant’s statements to police and paramedics;

b. An expert voir dire on the expertise and admissibility of PC Jim Wallace’s evidence as an accident reconstructionist and air bag control module (“ACM”) data interpreter;

c. An application to exclude the ACM data seized from a warrantless search of the vehicle driven by the Applicant under s. 24(2) of the Canadian Charter of Rights and Freedoms as a result of the infringement of her s. 8 Charter rights; and

d. An application to exclude the ambulance call report (“ACR”) and any derivative evidence obtained through a Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”), request to the County of Oxford, in a warrantless search that breached the Applicant’s s. 8 Charter rights and may warrant exclusion under s. 24(2) of the Charter.

Voluntariness Voir Dire

4I dealt with the voluntariness voir dire orally.

5On December 12, 2025, I decided that the Applicant’s roadside statements to police are inadmissible at trial. The Crown could not prove their voluntariness beyond a reasonable doubt. I did not need to provide a ruling on the Applicant’s utterances to the paramedics at the roadside as the defence conceded that the Applicant’s utterances to the paramedics were not given to persons in authority.

Expert Voir Dire

6The parties agreed that PC Wallace is qualified to give expert evidence, more specifically the defence conceded that PC Wallace is qualified to testify as an expert. If I admit the ACM data into evidence, the defence consents that PC Wallace is qualified to give evidence on the ACM data download for the Jeep. Further, defence concedes that PC Wallace may also give opinion evidence on the interpretation of this data and explain it to the jury. The defence does not object to PC Wallace giving the same evidence in relation to the minivan involved in the same collision.

7I am satisfied that the evidence of PC Wallace in interpreting and explaining the ACM data from the Jeep and the minivan meets the threshold requirements for admissibility in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, 144 D.L.R. (4th) 419. First, the evidence is relevant to a material issue in this proceeding, namely the assessment and interpretation of the ACM data seized from both vehicles. Second, the evidence is necessary to assist the trier of fact. This subject matter lies outside of the ordinary experience of a judge and the trial judge will be assisted by an interpretation of this data. Third, there is no exclusionary rule that would bar the admission of this evidence. Finally, I am satisfied that PC Wallace is properly qualified to give this opinion evidence. He has significant training and experience in his field of accident reconstruction, specifically in interpreting ACM data. Therefore, I admit PC Wallace’s opinion evidence at trial. The weight of this evidence shall be assessed considering the totality of the evidence, including the factual foundation on which it is based.

Ancillary Motions

8The defence also filed motion materials to introduce bad character evidence regarding the deceased. The bad character evidence only consists of the deceased’s driving record. Counsel ultimately did not ask me to decide this point on this motion. At this time, counsel have agreed to argue this issue at trial given the defence may not choose to file the deceased’s driving record at all.

9The defence filed further motion materials but later abandoned those motions pertaining to alleged violations of ss. 7 and 10 of the Charter. They are now moot given the court’s oral ruling on the voluntariness voir dire.

Issues

10Given the history of this motion, these reasons address the remaining issues before me:

(1) Should the ACM (air bag control module) data be included as evidence at the trial?

(2) Should the ACR (ambulance call report) of the Applicant and any derivative evidence be included as evidence at the trial?

11For the following reasons, I find that the ACM data retrieved from the vehicle operated by the Applicant at the time of the collision is admissible at trial. The ACR of the Applicant and any derivative evidence stemming from its seizure is not admissible at trial.

Facts

12On May 13, 2023, the Applicant drove her father’s 2014 Jeep Compass on Plank Line (Highway 19), just south of Curry Road in Southwest Oxford Township. Ahead of the Jeep, a 2004 Acura was travelling in the same lane and direction. The Jeep rear-ended the Acura.

13Kyle Wright was the lone occupant and driver of the Acura. The collision caused him to lose control. His vehicle quickly crossed the highway’s dividing line into oncoming traffic. He immediately collided head-on with a 2020 Toyota Sienna minivan travelling in the opposite direction. The collision sheared his vehicle lengthwise into two pieces. Mr. Wright was grievously injured and, tragically, he passed away shortly after arriving at the hospital. He was 32 years old.

14The minivan had five occupants. There were two adults and three children. The children were nine, twelve and thirteen years old. They were heading back from soccer practice. Four of the occupants were members of the Dovigi family. The fifth occupant was a friend of one of the Dovigi children, Lucca, who was twelve years old. All five of the minivan’s occupants suffered serious bodily harm and required immediate medical attention. Lucca required an air ambulance.

15After colliding with the Acura, the Applicant’s vehicle went into a nearby ditch. The Applicant did not suffer any injuries.

16The destruction to the Acura was devastating. It was split in two. The two halves wound up many meters apart from each other. It is remarkable that Mr. Wright was still conscious and breathing by the time first responders arrived. The minivan also suffered complete front-end damage.

17The Jeep’s ACM revealed that the Applicant was driving at 134 km/h in a posted 80 km/h zone at a constant speed five seconds before colliding with the Acura. One second before the impact, she applied the brakes. This reduced her speed to 124 km/h at the point of impact.

18Police were dispatched to the scene at approximately 2:59 p.m. By 3:07 p.m., fire and EMT were already on the scene.

19The attending paramedic, Kyle Godelie, privately assessed the Applicant between 3:37–3:44 p.m. in the rear of an ambulance. He conducted the Applicant’s health evaluation and filled out an ACR. Miranda Scianitti, the assisting paramedic, signed off on the Applicant’s refusal of care.

20The Applicant told Mr. Godelie that she was travelling at approximately 80km/h when she noticed the car ahead of her slowly enter the oncoming lane and collide head-on with a van. She said that she hit the brakes and swerved onto the right shoulder to avoid the crash.

21The Applicant left the ambulance after the evaluation. Eventually her mother arrived on the scene to pick her up. PC Arnold told the Applicant and her mother that the police would seize the Jeep. The Applicant left the scene without any charges.

22After the Ontario Provincial Police ("OPP") seized the Jeep, PC Wallace imaged the ACM on scene at 9:37 p.m. He also imaged the minivan’s ACM. Given the Acura’s age and incompatibility with the police software, he was unable to image the Acura’s ACM. Police also managed to view and seize a video of the collision from a neighbouring residence on the same day.

23The police did not arrest the Applicant on these charges until August 17, 2023.

24PC Arnold prepared a Report to Justice (“RTJ”) on May 14, 2023. The contents of the RTJ and its deficiencies form part of this motion. To this day, the police have not filed a proper RTJ.

25The Crown requested that PC Brock obtain the ACRs for the passengers of the minivan, which she did. In addition, PC Brock also decided to obtain the Applicant’s ACR on her own volition. PC Brock requested the Applicant’s ACR pursuant to PHIPA on October 18 and 28, 2023. She received the Applicant’s ACR from Angie Ferrell, an Oxford County Legislative Services Coordinator/Deputy Clerk, on November 1, 2023. On scene, PC Brock had recorded the names of the paramedics who treated the Applicant but did not obtain statements from them. The only “statements” obtained by the police from Mr. Godelie and Ms. Scianitti came from the Applicant’s ACR.

Positions of the Parties

26The parties’ positions respecting the inclusion of ACM data and the ACR as evidence at trial are summarized as follows.

The Admissibility of the ACM Data

(i) The Crown’s Position

27The Crown submits that the police lawfully seized the Jeep and its ACM data under s. 489(2)(c) of the Criminal Code. The police believed the Jeep and its ACM data would afford evidence, either inculpatory or exculpatory, as to whether the Applicant committed a criminal offence.

28The Crown concedes that the police failed to file an RTJ as soon as practicable pursuant to s. 489.1 of the Criminal Code, amounting to what it characterizes as a “technical” breach of s. 8 of the Charter. In its written submissions, the Crown argues that it cured the error upon discovery during the preliminary inquiry on September 5, 2024. PC Arnold resubmitted the RTJ after the preliminary inquiry. The evidence shows that the resubmitted RTJ was still improperly drafted and signed. However, the Crown maintains that the s. 8 breach was minor, and that the reliable ACM data ought not be excluded under s. 24(2) of the Charter.

29The Crown emphasizes that PC Brock served the Applicant with a LE324E Notification – Access to Seized Vehicle for Examination on August 17, 2023. The Applicant knew the police seized her father’s vehicle. The Crown also notes that a blank RTJ was included in the first set of disclosure materials received by defence on September 8, 2023. The fact that the RTJ was unsigned and never properly submitted was not discovered until the preliminary inquiry.

30On the s. 24(2) analysis, the Crown argues that the Applicant had little, if any, reasonable expectation of privacy in the ACM data. It stresses the technical nature of the breach, the reliability of the data, and society’s interest in adjudicating the case on its merits using reliable empirical evidence from the ACM.

(ii) The Defence’s Position

31The defence argues that the Jeep’s seizure did not fall within s. 489(2) of the Criminal Code. It submits that PC Wallace approached the scene with a presumption of criminality and the police seized the Jeep for either a Criminal Code offence or a Highway Traffic Act, R.S.O. 1990, c. H.8, offence as PC Arnold indicated. The defence contends that this seizure violated the Applicant’s s. 8 Charter rights.

32The defence further submits that the police never filed an RTJ pursuant to s. 489.1 of the Criminal Code, which also breached the Applicant’s s. 8 Charter rights.

33The defence asks the court to exclude the ACM data under s. 24(2) of the Charter.

Admissibility of the Applicant’s ACR

(i) The Crown’s Position

34The Crown submits that PC Brock properly obtained the Applicant’s ACR through PHIPA. As such, the Applicant had no reasonable expectation of privacy in the information disclosed and permissibly shared under PHIPA and the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”). Therefore, s.8 of the Charter is not engaged.

35The Crown argues that even if obtaining the ACR through the PHIPA request breached the Applicant’s s. 8 Charter rights, the ACR can still be used to refresh Mr. Godelie’s memory when he testifies. It submits that s. 24(2) does not prevent the Crown from using the ACR to refresh a witness’ memory or as a past recollection recorded at trial. The Crown maintains that if PC Brock’s PHIPA request breached s. 8, it was made in good faith, on the advice of a senior officer, and followed an established protocol with internal checks and balances through the County of Oxford.

(ii) The Defence’s Position

36Defence counsel maintains that PC Brock improperly obtained the ACR without judicial authorization. The Applicant had a reasonable expectation of privacy in her ACR. An ACR is a health record containing highly private information. Thus, PC Brock breached the Applicant’s s. 8 Charter rights.

37The defence seeks to exclude the ACR, and any derivative evidence obtained from its disclosure under s. 24(2) of the Charter. This includes preventing Mr. Godelie from referring to the ACR for any purpose, such as refreshing his memory, during trial.

Summary of the Evidence on the Motion

38Many witnesses testified in this motion. I will summarize the evidence relevant to my decision below.

(i) Evidence of PC Kristina Brock

Evidence from the Scene

39PC Brock started policing in 2021. She was first notified of the collision at 3:01 p.m. on May 13, 2023. She was the second or third officer to arrive at the scene at 3:07 p.m., with fire and ambulance already in attendance. Remarkably, Mr. Wright was still alive and breathing at this time. He was obviously in extreme medical distress.

40The destruction and seriousness of the scene was immediately apparent upon arrival. PC Brock had never seen a vehicle split in two before. She approached the minivan and saw first responders tending to the five occupants from the vehicle. At this point, she spoke to the Applicant.

41She had another conversation with the Applicant at 3:20 p.m., and I ruled that the Applicant’s utterances from this conversation are inadmissible at trial. However, they are admissible for the purposes of this voir dire: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202. The Applicant told PC Brock that she was the lone occupant of the Jeep. She claimed that she was travelling approximately 80 km/hr to 85 km/hr behind a white vehicle driving at least 80 km/hr to 100km/hr. She said the white vehicle suddenly came to an abrupt stop. She swerved into the ditch to avoid a collision.

42After the Applicant spoke to PC Brock, the paramedics tended to her inside a nearby ambulance. She finished in the ambulance at 3:43 p.m. PC Brock was with PC Arnold when the Applicant left the ambulance. She noticed that the Applicant’s demeanor had changed. She was now crying and frantically pacing. She had trouble answering questions and appeared panicked. PC Brock attributed this behaviour to nerves or shock, not impairment by drugs or alcohol.

43PC Brock did not know which officer made the decision to seize the Jeep. She suggested it was likely one of the two sergeants on scene: Sgt. Happl or Sgt. Kivell.

Post-Incident Conduct

44PC Brock became the investigating officer on this case when PC Arnold went on leave in June 2023. She arrested the Applicant on August 17, 2023.

45The police served the Applicant with a document entitled “Notice – Access to Seized Vehicle for Examination” (Exhibit #2). PC Brock signed and served this notice on the Applicant before she was released from the police station on August 17, 2023. The notice advised the Applicant that the police seized the Jeep and that she was required to appear in the Ontario Court of Justice on September 19, 2023, in Woodstock, Ontario. It advised her of several rights and obligations stemming from the seizure. The letter also empowered the police to retain the Jeep for an additional 30 days from the date of the letter’s service.

46I accept PC Brock’s evidence on these points and the contents of the letter. I also accept that she knew that the Jeep was not registered to the Applicant, but instead to her father. Sgt. Kivell advised PC Brock to serve this document on the Applicant because of that fact.

47Between January 11, 2024, and September 4, 2024, the Applicant’s father attended to retrieve personal belongings from his vehicle.

48PC Brock claims that she consulted with Sgt. Kivell regarding the warrant to seize the vehicle and any data from it. Sgt. Kivell advised her that he seized the vehicle pursuant to s. 489(2) of the Criminal Code. I don’t bring up these conversations as hearsay. Instead, they are to demonstrate the fact that PC Brock recalls reaching out to the traffic sergeant about seizing the vehicle. He provided her with directions on how to proceed.

49She testified that she never knew about the errors in the RTJ and does not know where the Jeep is today.

Obtaining the Applicant’s ACR

50PC Brock’s evidence regarding her request for the Applicant’s ACR came in piecemeal over the course of this week on consent of all parties. Ultimately, the parties made the largely unredacted version of her emails with PC Lowe an exhibit (Exhibit #14). This exhibit also shows PC Brock’s communication with the County of Oxford. The pages are not in chronological order, so I will outline PC Brock’s evidence in chronological order.

51On September 26, 2023, the Crown forwarded PC Brock an email from defence counsel seeking disclosure. The disclosure list contained a request for the ACRs for the five occupants of the minivan. The letter is Exhibit #1 in this motion.

52PC Brock received this disclosure request email, and she decided to also request the Applicant’s ACR on her own initiative.

53PC Brock sent her first correspondence to the County of Oxford, on October 18, 2023, at 6:18 a.m. She sent an email to ems@oxfordcounty.ca for a separate occurrence ending in 6063. The email generally requested “EMS Reports” and asked how she could obtain those reports. She received a response directing her to the Clerk’s Office at the County of Oxford. PC Brock followed the instructions of Ms. Angie Ferrell, the Legislative Services Coordinator and Deputy Clerk of the County of Oxford to submit a Law Enforcement Disclosure Form and obtain the ACR in this separate matter. She completed the form and received the ACR.

54She subsequently sent an email referring to the matter before me, for this occurrence ending in 2920, on October 18, 2023, at 4:36 p.m. She wrote to Ms. Ferrell that she had “a few more requests” and that “[t]hese pertain to a motor vehicle collision that occurred on Plank Line, SWOX on May 13th, 2023. There is a separate form for each individual”. PC Brock sent separate Law Enforcement Disclosure Forms for all the occupants of the minivan and for the Applicant.

55On October 19, 2023, at 5:09 a.m., PC Lowe sent an email to PC Brock following a conversation they had the day earlier about how to obtain ACRs, this email contained:

(1) An example email request that he had sent out to request “ambulance dispatch records” and a “copy of the dispatch tapes”; and

(2) An email thread between an Assistant Crown Attorney and PC Brandy Ross copying PC Lowe regarding how to access “ambulance report[s]”. This included a further email thread between PC Ross and Ms. Ferrell.

56On October 20, 2023, Ms. Ferrell responded to PC Brock’s email about this occurrence. She asked her, “can I please confirm with you that this matter is under active investigation?”

57PC Brock testified that she did not review the contents of the lengthy email from PC Lowe until October 21, 2023.

58On October 28, 2023, at 6:28 a.m., PC Brock responded to Ms. Ferrell’s question with a simple “yes”.

59On November 1, 2023, Ms. Ferrell sent an email with a secure link to download the ACRs for the Applicant and the occupants of the minivan. On November 6, 2023, PC Brock acknowledged receipt.

60In cross-examination, PC Brock did not agree with the suggestion that she was no longer actively investigating the charge when she requested the Applicant’s ACR. Although the Applicant had already been charged and her matter was before the court, PC Brock claimed that the investigation was “still open” in October and November 2023.

61PC Brock also acknowledged in cross-examination that the disclosure request from the defence did not include the Applicant’s medical records. PC Brock testified that her thought process was that she should obtain the ACRs for all individuals involved in the collision, including the Applicant.

62PC Brock agreed that she understood that the paramedics wanted to assess the Applicant to determine if she required further medical care. She also wanted to afford the Applicant with privacy while she was in the ambulance receiving medical attention.

63PC Brock agreed that her decision to access to the Applicant’s ACR was “a hunch”. She testified that she “was not even thinking that she was an accused party” when requesting the ACR, even though she was the arresting officer.

64PC Brock agreed in cross-examination that, in her opinion as the investigating officer, she did not have grounds to get a search warrant or a production order for the ACR reports at the time of her request to the County.

65PC Brock believed she had the authority to request the ACRs in the manner she did. She recognized in cross-examination that she could not obtain hospital records in the same way, as she would need a signed consent or a warrant/production order to obtain those records. Before submitting her request, she reviewed the relevant provisions of PHIPA and satisfied herself that she could obtain the ACR. She did not merely rely on what others told her. She also testified that she did not rely on the information in the email that PC Lowe sent her, only what he had told her in their conversation of which she did not take notes.

66It is worth noting the text on the back of the Law Enforcement Disclosure Form. PC Brock filled out the form by hand, scanned it, and sent it back to Ms. Ferrell to obtain the Applicant’s ACR. The form reads:

Purpose of Form: this form is to be completed if PI or PHI in the custody of the County is sought by the police or other law enforcement agency to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result; a permitted disclosure under Sec.43 (1) (f) of the Personal Health Information Protection Act, 2004 and Sec.32 (g) of the Municipal Freedom of Information and Protection of Privacy Act. [Emphasis added.]

67A blank copy of both sides of the form is filed as Exhibit #15.

68PC Brock filled out the form stating that she sought the ACR under s. 43(1)(f) of PHIPA, however, the records were sent on November 1, 2023, with a cover letter from Ms. Ferrell stating that the records had been released under s. 43(1)(g) of PHIPA.

(ii) The Evidence of PC Michael Arnold

69PC Arnold was called out to the scene at 2:59 p.m. on May 13, 2023. He arrived at 3:08 p.m., and immediately saw the white Acura ripped in half. Fire personnel worked on getting Mr. Wright out of the vehicle. He then walked to the minivan on the east shoulder on the highway. He noted that two adults and three children had been in the vehicle. The children were very upset.

70PC Arnold had some conversation with the Applicant, but it is inadmissible and irrelevant for this analysis. The only relevant fact is that the Applicant confirmed that she was the driver of the Jeep located in the west ditch. He ran the vehicle’s licence plates and realized it was registered to her father.

71PC Arnold understood that he would likely be assigned as the investigating officer or would assist the investigating officer when he arrived on the scene. He also believed that someone may have committed an offence under the Criminal Code or the Highway Traffic Act. When asked what type of offence he had in mind when he first arrived on scene, he mentioned dangerous operation or prohibited driving. He also thought that, given the severe injuries, the Criminal Code offences of dangerous operation causing death or bodily harm may be applicable.

72On May 14, 2023, PC Arnold attended a meeting at the detachment regarding the investigation. He was tasked with updating the Applicant’s family about the Jeep and completing the RTJ for all three vehicles. He called the Applicant that day at 3:11 p.m.

73He completed the RTJ for the Jeep on May 14, 2023, and put it in a court box to be delivered in Ingersoll. He then went on a short leave from June to September 2023. During his time away, he was removed as the officer in charge of this investigation and did not return to that role. He did not think about the RTJ again until the preliminary inquiry in this matter.

74At the preliminary inquiry, PC Arnold learned that he made several errors in the RTJ. He submitted an unsigned copy, and the form was internally inconsistent. The envelope with the unsigned RTJ had been returned to the OPP detachment with a handwritten note on the envelope: “not signed return to PC Arnold”. The envelope remained in a mail slot for him since May 2023. It was still in that mail slot when a duty sergeant retrieved it and took a picture of it during the preliminary inquiry on September 5, 2024.

75He was asked to resubmit the RTJ after the preliminary inquiry. He signed the original RTJ, scratched out the old date and replaced it with a new one. He did nothing else to alter the form.

Original RTJ

76The original RTJ submitted on May 14, 2023, identified PC Arnold and stated that he “acted otherwise in the execution of my duties under the Criminal Code or any other Act of Parliament; section 489(2)(c) CC the vehicles were seized as evidence of a possible offence during the course of the investigation of a motor vehicle collision.” It also stated that the police seized the minivan and Acura as well but released both after expert examination.

77The RTJ indicated that the police seized the Jeep and detained it at “OPP Oxford County Forensic Office” in Tillsonburg, Ontario. Under “Order of Return”, PC Arnold checked the box stating, “I hereby order that all items seized be returned to”, but he left blank the space identifying the lawful owner or person entitled to possession. He also checked a box under “Order of Detention”, but did not identify the specific terms to be detained. Instead, he checked the box requesting that these unnamed items remain in the custody of the OPP – Oxford County until the completion of all proceedings, “as charges have been laid.”

78To say that PC Arnold filled out this form improperly would be an understatement. It is internally inconsistent, unsigned and undated. It is no surprise that it was returned to PC Arnold unendorsed.

Resubmitted RTJ

79The RTJ that PC Arnold resubmitted repeated the same information, along with the same boxes checked as in the original form. It now advised the Justice of the Peace or Judge that the police seized the Jeep and detained it at “OPP Oxford County Forensic Office, 180 John Pound Road, Tillsonburg, ON.” Nowhere on the form did it indicate that the Jeep was no longer at that location or that police had seized it more than 16 months earlier.

80I have no evidence that a Justice of the Peace or Judge ever signed or returned this form. The only evidence before me is the parties’ agreement that no proper RTJ has ever been filed with the court for judicial review and authorization.

Returning to PC Arnold’s Evidence

81On May 14, 2023, PC Arnold called the Applicant to advise that police were holding her vehicle pending investigation and that the collision was fatal. By that date, police had determined that the Applicant was the “at-fault” driver.

82On May 15, 2023, at 6:15 p.m., PC Arnold left a voicemail for the Applicant. At 6:58 p.m., he called the Applicant’s mother to inform her of the hold on the vehicle. The Applicant’s mother informed him that her husband was aware and did not need to speak to the police.

83On May 16, 2023, PC Arnold spoke directly to the Applicant and advised her of the hold on the Jeep.

84PC Arnold explained in his testimony that although he acted as the officer in charge of the investigation, he was working under the direction of Sgt. Kivell. He had never previously attended a motor vehicle collision involving death or serious bodily harm.

85In cross-examination, PC Arnold testified that he did not independently draft the information he inserted into the RTJ, including the statement that “489(2)(c) CC the vehicles were seized as evidence of a possible offence during the course of the investigation of a motor vehicle collision.” He said more senior officers provided this information at the detachment meeting on May 14, 2023, when he was tasked with completing the RTJ.

86This RTJ was the first one he ever completed.

87PC Arnold conceded that the resubmitted RTJ in September 2024 did not disclose the date the police seized the vehicles or the current location of the Jeep. He acknowledged that he did not know where the Jeep was on the date that he resubmitted the form.

88He further acknowledged that when he originally submitted the RTJ on May 14, 2023, no charges had been laid, despite having checked the box indicating that charges were already in place.

(iii) The Evidence of Sgt. Shawn Kivell

89Sgt. Kivell has served with the OPP in Oxford County since 1995 and has worked as a traffic sergeant since 2008. He arrived at the scene at 4:10 p.m., after calling Sgt. Aaron Happl to attend.

90As a traffic sergeant, he only becomes involved in an investigation when a collision involves life-threatening injuries or a fatality. His unit includes level three and level four reconstructionists. When he arrived, PC Jim Wallace, a level four reconstructionist on his platoon, was already on scene.

91Sgt. Kivell described extensive destruction. One vehicle was split in two on the roadway. The minivan was severely damaged, and the Jeep sat in a ditch southwest of the collision.

92He stated that PC Wallace arrived first, completed an early assessment, and told him the Jeep was likely involved. Sgt. Kivell also spoke to Sgt. Happl when he arrived.

93After assessing the extensive damage at the scene, Sgt. Kivell turned to the possibility of a criminal investigation. He decided to seize the three vehicles under s. 489(2)(c) and told Sgt. Happl, PC Wallace, and later PC Arnold.

94Sgt. Kivell described why he seized the vehicles. He stated in examination-in-chief that he believed the three vehicles involved “might afford some evidence to the offence of the dangerous operation … as a criminal investigation”.

95He highlighted that the roadway was straight, the weather was clear, the surface was dry, and the traffic was heavy. The level of destruction suggested a very high speed of impact.

96He emphasized that the investigation operated as a team effort. He supervised the traffic officers, while Sgt. Happl supervised the investigators. He testified that, right away, he believed that this collision could have been due to the criminal offence of dangerous operation of a motor vehicle.

97He told Sgt. Happl that the investigation required an RTJ and assigned PC Arnold to complete it. He was unsure whether he gave that instruction at the scene or during the meeting at the detachment the next day.

98He testified that he did not meet with the Crown before testifying on this motion. He also did not know the RTJ would be an issue. He did not see or review the RTJ. I accept his evidence on these points.

99In cross-examination, he confirmed that he made the seizure decision at the scene under s. 489(2)(c) after speaking with Sgt. Happl and PC Wallace and assessing the damage.

100He stated that he would not have told PC Arnold that police seized the vehicles for a Criminal Code or Highway Traffic Act investigation. I accept that this experienced traffic sergeant understood at the scene, as he does now, that police cannot seize evidence for a suspected provincial offence.

101Defence counsel suggested that he presumed criminality when he arrived at the scene. Sgt. Kivell disagreed, stating, “when I show up at a scene, I do not know what happened”, and he explained how the severity of the scene led him to believe that he was investigating a possible criminal offence under s. 489(2)(c).

102He agreed with the wording that he began with a presumption of criminality but clarified that he meant only that the collision appeared extremely serious, and he needed to investigate.

103My impression was that he accepted the phrasing without adopting the underlying assertion. He explained that he relied on his experience as a traffic sergeant and stated, “I believed that we were investigating a possible criminal investigation under s.489(2)(c).” He acknowledged that the seizure could lead to Criminal Code charges, Highway Traffic Act charges, or no charges. However, he did not agree that the Highway Traffic Act authorized the seizure.

104I accept his evidence. He believed the vehicle could afford evidence of a criminal offence, while recognizing that the investigation might instead point to a Highway Traffic Act infraction or no offences at all. Although he agreed with a phrase put to him, his full explanation showed an open mind. I do not find that he presumed the Applicant committed a criminal offence. He only presumed that the vehicle she operated might contain evidence of dangerous operation.

105In re-examination, he repeated: “I believed that the motor vehicle collision looked serious to me… it was a busy roadway, it is a straightaway, a beautiful day, the roads were dry, and seeing the result of what happened, I am in the mindset that this is possibly a dangerous operation collision.”

106Sgt. Kivell left the scene at approximately 9:15 p.m., after about five hours.

107He testified that he believed the Jeep was returned to its registered owner 30 days after the police laid charges. Before its release, it remained at Martin Carriers Inc.

108He knew an RTJ had been uploaded into the report management system, but he did not review it and assumed it had been completed. He did not know that PC Arnold resubmitted another RTJ in September 2024.

(iv) The Evidence of PC Jim Wallace

109Counsel agreed that the transcript of PC Wallace’s preliminary inquiry testimony forms part of his evidence on this motion. The transcript was entered as Exhibit #13, and his collision reconstruction report was entered as Exhibit #12.

110Given counsel’s agreement on his expertise, I only refer to his evidence relevant to the remaining issues.

111In his report, PC Wallace listed Sgt. Kivell and Sgt. Happl as his supervisors.

112He arrived at the scene at 3:23 p.m. on May 13, 2023, and took photographs and a video.

113He imaged the Jeep’s ACM at 9:37 p.m. on May 13, 2023, at the scene. The ACM recorded two events: a “First Prior Event” and a “Most Recent Event.”

114The ACM recorded the following data for the First Prior Event:

a. The driver’s safety belt was buckled.

b. Maximum longitudinal delta-V was -19 km/h.

c. Maximum lateral delta-V was 4 km/h.

d. At -5.0 seconds, the Jeep’s speed was 134 km/h, and the brakes were off.

e. At -4.0 seconds, the speed was 134 km/h, and the brakes were off.

f. At -3.0 seconds, the speed was 134 km/h, and the brakes were off.

g. At -2.0 seconds, the speed was 134 km/h, and the brakes were off.

h. At -1.0 seconds, the speed was 134 km/hr, and the brakes were off.

i. At -0.4 seconds, the speed was 132 km/h, and the brakes were on.

j. At -0.1 seconds, the speed was 124 km/h, and the brakes were on.

k. Cruise control was off.

115The ACM recorded the following data for the Most Recent Event, which began 2.8 seconds after the First Prior Event:

l. The driver’s safety belt was buckled.

m. Maximum longitudinal delta-V was -4 km/h.

n. Maximum lateral delta-V was 1 km/h.

o. At -5.0 seconds, the speed was 134 km/h, and the brakes were off.

p. At -4.0 seconds, the speed was 134 km/h, and the brakes were off.

q. At -3.3 seconds, the speed was 132 km/h, and the brakes were on.

r. At -3.0 seconds, the speed was 124 km/h, and the brakes were on.

s. At -2.0 seconds, the speed was 91 km/h, and the brakes were on.

t. At -1.0 seconds, the speed was 68 km/h, and the brakes were on.

u. At -.05 seconds, the speed was 50 km/h, and the brakes were on.

v. At -0.1 seconds, the speed was 35 km/h, the brakes were on, and cruise control was off.

116In his report, PC Wallace noted that the brake pedal moved properly and was unobstructed; the brake fluid level was low; the accelerator pedal moved properly and returned; and the steering system operated properly with a full power-steering reservoir.

117At the preliminary inquiry, he testified that the posted speed limit was 80 km/h, and that the Jeep travelled at 134 km/h five seconds before the collision, braking only 0.4 seconds before the first collision event, reducing speed to 124 km/h. He also testified that he could not retrieve ACM data from the Acura due to the incompatibility between the Acura’s ACM and the software available to the OPP.

118Defence counsel established at the preliminary hearing that the First Prior Event corresponded to the Jeep’s collision with the Acura. Counsel also elicited that the Applicant stopped pressing the accelerator 0.7 seconds before the collision, consistent with the speed reduction in the ACM data.

119In cross-examination, he agreed that he could not give an opinion on the Acura’s speed or whether the Acura applied its brakes before the collision.

120He confirmed that he imaged the Jeep’s ACM at 9:37 p.m. on May 13, 2023.

121At the preliminary inquiry, he agreed in cross-examination that his starting point when attending a collision scene is that someone has committed a criminal offence.

122Defence counsel explained the phrase “think dirty” as a way to “presume a crime has been committed and work your way backward.” PC Wallace testified that he had heard the term within the OPP traffic unit but stated, “that’s not how I work or how I think.”

123He explained that he assumes a crime may have occurred and conducts a full, unbiased investigation. He emphasized that he does not decide what charges are laid; he provides information to the traffic sergeant, who makes that decision. He testified that he was unfamiliar with the term “confirmation bias”.

124A short time later, he agreed that the presumption that a crime had been committed remained in his mind from the moment he arrived until after he reviewed the collision video.

125At this motion, he testified that he had acted as lead reconstructionist in 137 fatal collisions and assisted in 223 others. He also testified that he has led fatal-collision investigations where no criminal charges were laid.

126He stated that he did not participate in the decision to seize or hold any of the vehicles on May 13, 2023. He directed the vehicles to Martin Carriers Inc. in Woodstock, Ontario, and continued his examinations on May 14, 2023.

(v) The Evidence of Kyle Godelie

127Mr. Godelie was one of the paramedics who tended to the Applicant at the scene. His partner, Miranda Scianitti, drove the ambulance that day. He explained that he and his partner alternate between driving and attending from call to call. He was the attending paramedic for this call on May 13, 2023. Their ambulance was one of the last to arrive.

128Before refreshing his memory with the ACR, Mr. Godelie recalled seeing several vehicles involved and that fire, police, and other ambulances were already on scene. He remembered arriving in mid-afternoon on a sunny day with clear, dry roads.

129He recalled a woman named “Brittany” and believed the vehicle in the ditch belonged to her. She had no obvious injuries, and her vehicle was relatively undamaged compared to the others. Because other paramedics were already tending to the other injured occupants, he turned his attention to the Applicant. He assessed her in the back of his ambulance. He also recalled that she was not transported to the hospital and that he completed a refusal of service form.

130Other than those details, he could not recall the specifics of their interaction. He reviewed the Applicant’s ACR to refresh his memory.

131After reviewing this ACR, Mr. Godelie recalled that the Applicant described what happened before the collision. She told him that she was travelling southbound at approximately the speed limit, saw the vehicle in front of her slowly move into the oncoming lane, swerved to the right to avoid the collision and ended up in the ditch. She was wearing her seatbelt, and her airbags deployed. She initially declined an assessment but agreed once she knew the other injured persons were being treated.

132He assessed the Applicant and then competed the refusal of service form. He had no concerns about her refusal of service.

133In cross-examination, Mr. Godelie agreed that patient information and the records he creates are private documents governed by legislation. He confirmed that he reviewed the Applicant’s ACR before testifying. He agreed that without the ACR, he could not accurately recall his dealings with her.

134He agreed that his assessment of the Applicant was private. Only he, the Applicant and his partner were inside the ambulance. He began visually assessing her as soon as he encountered her and watched for signs of confusion.

135He explained that he asked the Applicant questions about the collision, including her speed, seat belt use, and airbag deployment. That information helped him assess potential trauma.

136He explained that some entries on the ACR were prepopulated by the computer system or provided by dispatch. He manually entered only the “patient contact” time, which he recorded as 15:37.

137He explained that he wrote notes about the circumstances of the collision later in his shift. They were not verbatim or contemporaneous. At no point did he tell the Applicant that he would share her information with the police.

(vi) The Evidence of Miranda Scianitti

138Ms. Scianitti did not have any conversation with the Applicant, nor did she assess her. She was not involved in the creation of the ACR other than signing off on the Applicant’s refusal of service form.

Overall Assessment of the Evidence

139Before turning to my analysis, I want to reflect on my overall assessment of the evidence. It was abundant and, for the most part, unchallenged. Most issues in this case do not require me to weigh the reliability or credibility of these witnesses. Even if they did, I found every witness who testified to be credible and reliable. I believe all of them.

140Only one witness requires me to assess their credibility and reliability: Sgt. Kivell. I must do so because the defence challenged his claimed decision to seize the Jeep pursuant to s. 489(2) of the Criminal Code.

141I found Sgt. Kivell to be a good witness, and I accept his evidence. He was forthright, credible and reliable. He did not cling stubbornly to his version of events and admitted when he might have been mistaken in his testimony. For example, he fairly acknowledged in cross-examination that he may not have tasked PC Arnold with drafting the RTJ at the scene, contrary to his testimony in examination-in-chief. He accepted that it may have occurred the following day at the briefing. I do not find that Sgt. Kivell’s decision to not have a scribe at the briefing detracts from his credibility or reliability. It is unfortunate, but I find that it was simply human oversight.

Analysis

Issue 1: The ACM Data Obtained from the Seized Jeep

Applicable Legal Principles

142Section 489(2)(c) of the Criminal Code provides a statutory mechanism to seize motor vehicles involved in a serious motor vehicle collision without the necessity of obtaining judicial authorization. The parties agree that the leading case on this issue is R. v. Attard, 2024 ONCA 616, 173 O.R. (3d) 337.

143There is no distinct reasonable expectation of privacy in the substance of the data from an Event Data Recorder (“EDR”), which in this case is synonymous with the ACM: Attard, at para. 56. Further, a driver or owner does not have a reasonable expectation of privacy in the ACM data once the vehicle has been lawfully seized under s. 489(2)(c): Attard, at para. 69.

144When the police lawfully seize a vehicle, the right to inspect it includes the right to extract and examine the ACM data: Attard, at para. 57.

145The Court of Appeal for Ontario explained what is needed to constitute a lawful seizure under s. 489(2)(c) in Attard at para. 47:

[47] Whether the respondent’s car was lawfully seized from the accident scene depends on whether Officer Ball had reasonable grounds, at the time it was seized, to believe it would afford evidence in respect of an offence. Reasonable grounds to believe must be founded in objective facts: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27. The reasonableness of a police officer’s belief must be determined having regard to the objective and ascertainable facts as seen through the eyes of a reasonable person with the same knowledge, training, and experience as the police officer: Chow, at para. 47.

146Any limited territorial privacy interest in the ACM is extinguished after a s. 489(2) seizure of a vehicle: Attard, at para. 4.

147Section 489(2) of the Criminal Code gives a police officer the power to seize “any thing” without a warrant in certain circumstances:

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament. [Emphasis added.]

148An officer does not need to expressly reference s. 489(2)(c) for a court to decide whether that section justified the seizure. The court can look at the evidence as a whole and infer that an officer had reasonable grounds: Attard, at para. 53.

Application

149In considering the totality of the circumstances, I accept Sgt. Kivell’s evidence. He decided to seize all three vehicles involved in the collision. Sgt. Kivell has over 30 years of policing experience and served as a traffic sergeant since 2008.

150After speaking with PC Wallace and Sgt. Happl on the scene and observing the collision, Sgt. Kivell testified that he believed that seizing the vehicles might or could afford evidence of whether a criminal offence occurred. I find that his belief was objectively reasonable in the circumstances.

151Although Sgt. Kivell used the words “might” and “could” when speaking of his decision to seize under s. 489(2)(c), I find that he would have agreed with the term “will afford evidence” had it been put to him. He repeatedly explained that he did not know what happened and that the conditions of the scene made it seem that someone operated their vehicle in a dangerous fashion. Although he did not use those exact words, I find that because he believed that a dangerous operation likely occurred as under the Criminal Code, he also believed that seizing the vehicles would likely afford evidence of that offence. This could have been inculpatory or exculpatory evidence for any of the three vehicles. As he said, he was open to the possibility that no offence was committed.

152The defence argued that an OPP policy of presuming criminality at serious collisions may have influenced Sgt. Kivell’s decision. I reject this argument. I do not find that Sgt. Kivell presumed the Applicant’s guilt. While he agreed with the phrasing of defence counsel, he properly seized the Jeep under s. 489(2)(c) as he believed it would afford evidence of the criminal offence of dangerous operation causing bodily harm.

153PC Wallace testified that he approaches serious collisions with a presumption that a crime occurred. This is troubling, but it does not affect Sgt. Kivell’s objectively reasonable grounds. The scene spoke for itself: beautiful weather, dry roads, a straight portion of highway, and devastating damage to the Acura and minivan. These factors pointed to very high speeds. Bodily harm to all the minivan’s occupants and grievous bodily harm to Mr. Wright were apparent when Sgt. Kivell made the decision to seize the vehicles. It was more than objectively reasonable to believe examining all three vehicles, including the Jeep, would afford evidence of dangerous operation causing bodily harm.

154I find that the Jeep was lawfully seized under s. 489(2)(c). The police were entitled to extract the ACM data. The Applicant had no reasonable expectation of privacy in that data once the police lawfully seized the vehicle.

155Sgt. Kivell did not write in his notebook that he seized the vehicles under s. 489(2)(c). Like in Attard, that omission is not determinative. The court may infer reliance on s. 489(2)(c) from the evidence as a whole if reasonable grounds exist: Attard, at para. 53.

156Sgt. Kivell had been a traffic sergeant for over 15 years on May 13, 2023. I accept that he understood the authority to seize vehicles pursuant to the factors outlined in s. 489(2) of the Criminal Code. He clearly rejected defence counsel’s suggestion that a suspected Highway Traffic Act offence could justify seizure. PC Arnold, a less experienced officer, accepted that suggestion. Sgt. Kivell, the officer who made the decision to seize the Jeep, did not. I believe him and accept that he understood only a Criminal Code offence investigation or an investigation under an Act of Parliament could justify seizure under s. 489(2).

157Even if the RTJ had been properly completed and the Jeep returned sooner, it would not have affected the evidence at issue. By May 14, 2023, the police had already collected the photographs, ACM data, and other evidence at issue in this motion. Returning the Jeep following the RTJ being submitted on May 13, 2023, would not have changed the collection of this evidence.

158If I am wrong and the seizure of the Jeep and ACM data violated the Applicant’s s. 8 Charter rights, I would still admit the evidence under s. 24(2), as explained below.

Failure of the Police to Comply with ss. 489.1 and 490

Applicable Legal Principles

159The Crown concedes that the police never filed an RTJ. That failure breached the Applicant’s s. 8 Charter rights.

160When the police file an RTJ, ss. 490(1) – (3) of the Criminal Code govern the lawfulness of the ongoing detention of the seized items.

161Section 489.1 and 490 of the Criminal Code ensure judicial oversight of the of seized property, set limits on retention, and provide a mechanism for individuals to seek its return.

162In R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at para. 55, the Court of Appeal called compliance with s. 489.1(1) “the gateway” to protecting rights to seized items. It protects the recording of seized items, the right to notice, and the scheme to facilitate the return of seized items to their lawful owners.

163In Garcia-Machado, the seized items were blood and hospital records. The police failed to file an RTJ for over three months. The court found a residual privacy interest and held this oversight compromised it. The court left open “for another day” whether any other breach of s. 489.1(1) or any breach of s. 490, even if so minor or technical as to have no real impact on the judicial oversight contemplated by the sections, would breach s. 8 of the Charter: at para. 55.

164In R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at paras. 44-45, the Court of Appeal expanded on this point:

[44] Where the police wish to keep something seized during the execution of their duties, s. 489.1(1)(b)(ii) of the Criminal Code requires that they make a report to a justice “as soon as is practicable”. A report filed under s. 489.1(1)(b)(ii) allows the seized items to be dealt with in accordance with s. 490(1), which grants a justice the power to order the things seized detained or returned. The balance of s. 490 contains numerous provisions governing the continued detention, use, and return of seized property.

[45] Section 489.1(1) applies to seizures made both with and without prior judicial authorization: Backhouse, at para. 111. The provision fulfills an important purpose, providing the gateway to s. 490 of the Criminal Code: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 55; Backhouse, at para. 112. Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers.

Application

165The police breached the Applicant’s s. 8 Charter rights by failing to submit a proper RTJ. PC Arnold was tasked with submitting the RTJ on May 14, 2023. He attempted to do so but submitted an unsigned and internally inconsistent copy.

166Defence counsel did not argue that this faulty RTJ was not done “as soon as practicable”. Its position is that the police never filed an RTJ. That is accurate. However, in the s. 24(2) Charter analysis, the court must consider that PC Arnold attempted to submit an RTJ on May 14, 2023, despite its deficiencies.

Section 24(2) Analysis of the ACM Data

Applicable Legal Principles

167Given that I found the police breached the Applicant’s s. 8 Charter rights, it is incumbent upon me to consider whether the resulting evidence should be excluded pursuant to s. 24(2) of the Charter. In assessing the breaches, I must address the three factors outlined in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71:

(1) The seriousness of the breach;

(2) The impact of the breach on the Applicant’s Charter rights; and

(3) Society’s interest in the adjudication of the case on its merits.

168I am guided by the Supreme Court’s comments in Grant, at paras. 69-70:

[69] Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

[70] Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

Factor 1: The Seriousness of the Charter-Infringing Conduct

169At this stage, the court must assess the severity of the state conduct that caused the Charter breach. The more severe or deliberate the conduct, the stronger the need to disassociate from it.

170The inquiry does not aim to punish the police or to deter future Charter breaches: Grant, at para. 73. Its purpose is to preserve public confidence in the rule of law.

171I accept PC Arnold’s evidence. All parties largely agreed on his credibility and reliability. He testified honestly. The issue lies in the content of his testimony. He first submitted an unsigned RTJ on May 14, 2023, containing internal inconsistencies about what he sought judicial authorization for. He later attempted to resubmit the same RTJ by scratching out the date, adding a new one, and signing it.

172PC Arnold had never submitted an RTJ before. Sgt. Kivell instructed him to do so and gave limited guidance. No senior officer reviewed the form. PC Arnold did not realize the RTJ had been returned unsigned until he testified at the preliminary hearing. I find these initial deficiencies resulted from human error and inexperience and not at all from any bad faith on the part of PC Arnold or the police.

173When the Crown asked PC Arnold to resubmit the RTJ, he failed to meet the level of care expected from a police officer. The revised RTJ still contained misleading errors and incorrect information. The Jeep was no longer at the location stated in the form. It also failed to disclose that the Jeep had been seized more than 16 months prior to the submission date.

174On the first branch of the Grant analysis, I find the initial breach under s. 489.1 was significant because it denied proper judicial authorization under the Criminal Code.

175PC Arnold’s continued lack of care in resubmitting the RTJ after the preliminary inquiry is more serious, but again, this error was due to lack of care and not bad faith. The impact of the breach remained the same.

176I do not accept the Crown’s characterization that this was a “mere technical breach”. However, I do not find that the seriousness of the breach weighs in favour of exclusion at this stage of the inquiry.

177Should I be wrong in my s.489(2)(c) analysis that Sgt. Kivell believed that the Jeep would afford evidence, I find that Sgt. Kivell at least honestly believed that the Jeep could afford evidence of the criminal offence of dangerous operation. The was his stated subjective view. Objectively speaking, a properly informed officer in the same circumstances should have had the view that the Jeep would have afforded evidence of this crime. The Jeep ought to have been seized under s.489(2)(c) for all the observations at the scene as testified to by Sgt. Kivell. If his subjective belief is found to have been “could have” vs “would have” afforded evidence, the seriousness of this conduct at the first stage of the Grant test is low and favours inclusion of the ACM.

Factor 2: Impact of the breach on the Charter-Protected Rights of the Applicant

178The impact on the Applicant’s reasonable expectation of privacy is minimal. If the seizure of the Jeep was lawful under s. 489(2)(c) of the Criminal Code, then the Applicant no longer had a reasonable expectation of privacy in the ACM data.

179On the second Grant factor, even if the seizure breached the Applicant’s Charter-protected privacy interests, the Court of Appeal in Attard held that the impact of accessing EDR data is minimal: at para. 82.

180As explained in Attard, ACM data provides more information than an eyewitness. It can identify the exact speed, the amount of throttle on the accelerator and brake use. However, the information is qualitatively similar to what an observer could see: at para. 68.

181In R. v. Sierkowski, 2025 ONSC 4956, at para. 128, my colleague ten Cate J. held:

[T]he fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that there may have been virtually no impact on that expectation will be important factors in the analysis under s.24(2) of the Charter. However, they will not render continued detention after a clear violation of a s.489.1(1) to report to a justice as soon as practically reasonable.

182Therefore, while the s. 8 breach was not reasonable, the very limited impact on privacy in the ACM data is a significant consideration in the Grant analysis.

183I find that the interference with the Applicant’s Charter-protected rights is minimal. On this second stage, where the reasonable expectation of privacy in the ACM data is nil or exceptionally diminished, the analysis militates in favour of including the evidence. I find the same analysis also applies at this second stage if there was a s.489(2)(c) breach.

Factor 3: Society’s Interest in the Adjudication of the Case on its Merits

184Society has a strong interest in prosecuting cases on their merits. The ACM data provides precise and reliable evidence otherwise unavailable to the Crown. It provides the Jeep’s exact speed five seconds before and at the time of the collision, when the brakes were applied, and other critical details.

185The first two factors of the analysis favour including the ACM data for the RTJ acknowledged breach and the 489(2)(c) potential breach. This offence is serious, and the data is vital. Excluding this data would create an evidentiary gap that undermines trying this case on its merits, as it did in Attard.

186The Supreme Court of Canada recognized in Grant that the seriousness of the alleged offence has the “potential to cut both ways”, at para. 84.

The seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus.

187I find that the third Grant factor also supports inclusion. In Attard, excluding the EDR data left a significant evidentiary gap in the Crown’s case. The same would be true here.

188I will leave the balancing of the Grant factors of the ACM data to the conclusion of the Grant analysis for the ACR data.

Issue 2: Admissibility of the ACR and its Derivative Evidence

189The first question that I must consider in this analysis is whether obtaining the ACR amounted to a search under s. 8 of the Charter.

190The Crown argues that PC Brock lawfully obtained the ACR under PHIPA. It does not concede that the Applicant had a reasonable expectation of privacy in the record. It relies on R. v. LaChappelle, 2007 ONCA 655, leave to appeal dismissed, [2008] S.C.C.A No. 32272, and R. v. Ouellette, 2025 ABCA 340, as appellate authority. The Crown accepts that any search is subject to judicial review but denies that the way PC Brock obtained the ACR was a warrantless search.

PC Brock’s Actions as a “Search” Pursuant to s. 8 of the Charter

191Section 8 of the Charter guarantees “the right to be secure against unreasonable search or seizure”. I must first determine whether obtaining the Applicant’s ACR amounted to a search or seizure.

192The answer to this question turns on whether, in the totality of the circumstances, the Applicant had a reasonable expectation of privacy in the ACR. If she did, then obtaining that information was a search: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16. A search breaches s. 8 only if the state conduct intrudes upon that expectation of privacy: R. v. S.S., 2023 ONCA 130, 422 C.C.C. (3d) 277, at para. 29; R. v. LaChappelle, 2007 ONCA 655, 226 C.C.C. (3d) 518, at paras. 34–35, leave to appeal dismissed, [2008] S.C.C.A. No. 32272.

193The Court of Appeal made clear in S.S., at para. 36, that “LaChappelle does not establish a Charter-free zone in the back of ambulances.” Determining a reasonable expectation of privacy requires a contextual analysis. Sopinka J. in R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, at p. 293, as quoted in S.S. and LaChappelle, identified the relevant factors:

Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained, and the seriousness of the crime being investigated, allow for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement. It is, then, necessary to apply this contextual approach to the facts of the case at bar.

194The Crown argues that LaChappelle supports its position that the Applicant had no reasonable expectation of privacy in the ACR data and that obtaining it under PHIPA did not breach s. 8. Counsel advanced the same argument in S.S. regarding statements made in the back of an ambulance to a paramedic while a police officer listened unbeknownst to the accused. The Court of Appeal rejected that argument, holding at para. 38 that “LaChappelle is not binding authority on whether S.S. had a reasonable expectation of privacy. It is a case that turned on its own facts.”

195As in S.S., I must assess the Applicant’s reasonable expectation of privacy in her ACR in the context of this case. If she had such an expectation, then when PC Brock obtained this record through her PHIPA request to the County of Oxford, it constituted a “search”: R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 15; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18.

Assessing the Applicant’s Reasonable Expectation of Privacy in the ACR

196There are four factors that I must take into consideration in assessing this issue:

(i) The subject matter of the alleged search;

(j) The Applicant’s interest in the subject matter;

(k) The Applicant’s subjective expectation of privacy; and

(l) Whether that expectation was objectively reasonable having regard to the totality of the circumstances: Spencer, at para. 18; Tessling, at para. 32; and R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40.

197Mr. Godelie agreed that the questions he asked the Applicant were for medical purposes, not investigative purposes. He asked questions about speed and the collision to assess potential trauma. He never told the Applicant that he might share this information with the police, nor did he ever intend to.

198The Applicant was alone with two paramedics in the back of the ambulance. Initially, she was hesitant on having an assessment. She only agreed to having an assessment after learning that the other injured parties were cared for. I find that she answered Mr. Godelie’s questions solely for medical purposes. The fact that her answers conflict with video and ACM evidence does not change this finding.

199I find that the subject matter of the search was a medical assessment intended to ensure the Applicant’s health and welfare. The Applicant’s interest in her medical assessment and her subjective expectation of privacy in it are high.

200The next question that I must consider is whether that expectation was objectively reasonable in all the circumstances.

201Informational privacy strengthens a reasonable expectation of privacy. Here, Mr. Godelie gathered the information to protect the Applicant’s health. This is akin to S.S. and supports an informational privacy claim.

202The first factor in assessing an informational privacy claim is inquiring on the nature and purpose of the questions. The Applicant answered questions designed to protect her life and health. Patients disclose such information under compulsion to safeguard their health, which creates a significant expectation of privacy: R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, at p. 433; S.S., at para. 41.

203The second factor is the intended purpose of the information. Mr. Godelie explained that he created the ACR for the Applicant’s care and potential treatment.

204The final factor considers what the information reveals about the person: S.S., at para. 49. I find that the Applicant’s comments about the Acura’s driving do not directly relate to treatment, but her speed did. Mr. Godelie testified that speed informed his trauma assessment. Although this is not core biographical data, it does not persuade me that the Applicant did not have a reasonable expectation of privacy in the information.

205I find that the Applicant had informational privacy in the ACR. In the totality of all the circumstances, I find that she also had a reasonable expectation of privacy in the ACR.

206The Crown relies on LaChappelle and Ouellette heavily on this point. These cases are distinguishable from the facts before me.

207In LaChappelle, an officer rode in the back of the ambulance while it transported the accused to the hospital. The accused knew she was there. The officer passively observed the accused and overheard his utterances. The officer believed that the accused provided one-word answers to the paramedic to avoid talking. She used this information to form grounds for arrest. Applying the Plant factors, the Court of Appeal found no breach of s. 8.

208This case is distinguishable. PC Brock did not make passive observations in the ambulance. In fact, she testified that she believed the Applicant had an expectation of privacy in the back of the ambulance. Mr. Godelie did not invite PC Brock into the ambulance, and the Applicant provided detailed answers to inform her medical treatment. PC Brock later obtained the entire ACR from the County of Oxford. This is clearly a different scenario from LaChappelle.

209In Ouellette, an officer also accompanied the respondent to the hospital during an impaired driving investigation. On the way to the hospital, the ambulance attendant asked several questions. In response, the respondent disclosed alcohol and drug use. The officer took note of only these parts of the conversation. Alberta’s Emergency Health Services Act, S.A. 2008, c. E-6.6, at s. 40.1 “would have permitted the ambulance attendant to disclose the accused’s admission of impairment without the respondent’s consent”: Ouellette, at para. 46.

210Ontario has no such similar legislation. The Alberta Court of Appeal found the officer’s passive presence was not a search: Ouellette, at para. 52. It distinguished the case from S.S., where the Crown conceded the interception was a search. These cases differ and S.S. remains Ontario’s appellate authority.

Impact of the Legislation

211Privacy legislation such as PHIPA and FIPPA may somewhat diminish an expectation of privacy. However, per S.S. at para. 43, “it does not do so materially”. The Court further wrote in S.S., at para. 46:

Moreover, even if the existence of a disclosure exception can be said, in some measure, to diminish an expectation of privacy, “a reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 9.

212Like PIPEDA in Spencer at para. 63, PHIPA “cannot be used as a factor to weigh against the existence of a reasonable expectation of privacy.”

213I find that obtaining the ACR was a search under s. 8 of the Charter. The Applicant had a reasonable expectation of privacy in the ACR, which PHIPA did not materially diminish.

Was the Search Lawful?

214Given that I found that obtaining the ACR constitutes a search under the Charter, I must consider whether that search was lawful. The search was warrantless and therefore presumptively unreasonable: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265; Spencer, at para. 68. The burden shifts to the Crown to rebut this presumption. As in Spencer, at para. 68, the only question is whether the search was authorized by law.

215Section 43 of PHIPA does not create any separate search or seizure powers for the police. This is analogous to Cromwell J.’s finding in Spencer, at para. 71, that “neither 487.014(1) of the Criminal Code, nor PIPEDA creates any police search and seizure powers”.

216I find the search in this case was unlawful.

Should the Evidence be Excluded under s. 24(2)?

217The final question is whether to exclude the evidence under s. 24(2) of the Charter. The defence seeks to exclude:

(i) The ACR as a record; and

(j) Any derivative evidence that resulted from obtaining the ACR:

a. Using the ACR to refresh the memory of Mr. Godelie;

b. Using the ACR as a past recollection recorded for Mr. Godelie; and

c. Using the ACR for any purpose.

218The Applicant’s utterances to Mr. Godelie would ordinarily be admissible evidence at trial. They were not made to a person in authority, and Mr. Godelie would ordinarily be allowed to use the ACR to refresh his memory at trial. However, defence argues that these utterances ought to be excluded because they are derivative of the s. 8 breach.

219Police never took statements from Mr. Godelie or Ms. Scianitti at the scene. PC Brock testified she requested the Applicant’s ambulance records on a “hunch” and agreed she had no grounds for a production order or warrant.

220On these facts, the police would not have learned of the Applicant’s comments to Mr. Godelie, and he would not have been a Crown witness. The evidence was not obtained lawfully. The discoverability doctrine does not apply because PC Brock admitted she lacked grounds to seek the ACR, and by November 2023 police had not taken statements from either paramedic.

221Mr. Godelie testified that he has no independent recollection of his conversation with the Applicant. He required the ACR to refresh his memory.

222The Crown argues that, as per R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, even if the ACR is inadmissible, Mr. Godelie ought to be able to refresh his memory from it. The Crown also suggests that it may seek to admit the ACR as past recollection recorded, if necessary, at trial. Given Mr. Godelie did not appear to have any difficulties with his memory after it was refreshed at this motion, I do not see the basis for this request now. However, I will address whether this hypothetical use will be allowed.

223This case is distinguishable from Fliss. In Fliss, although the intercepted communication was excluded evidence, the officer had a strong independent recollection of the confession. He was always going to be a Crown witness. Here, Mr. Godelie would never have been a Crown witness without PC Brock unlawfully obtaining the ACR. Mr. Godelie’s testimony confirms that he wrote down only a gist of what he recalled hours later. He has no independent recollection of any of the details of the conversation. He entirely relied upon the ACR to refresh his memory.

Grant Analysis for the ACR and the Derivative Evidence of the Use of the ACR

224I have already outlined the relevant elements to the Grant test above. I will proceed with the analysis as it relates to the ACR and its derivative evidence.

Factor 1: Seriousness of the Charter-Infringing Conduct

225I find that PC Brock attempted to follow known protocol in accessing the Applicant’s ACR. She asked for this record in conjunction with the records for the occupants of the minivan. She thought this record might be of interest. She did not turn her mind to obtaining a production order for this record. I also accept that she did not believe she had reasonable or probable grounds to get a production order. I agree that she did not have reasonable or probable grounds for a production order for these records.

226PC Brock consulted with a senior officer, PC Lowe, for his advice on how to obtain the ACR. He advised her in a conversation to make a PHIPA request to the County. She used this advice. In a later email, after the request had been made, PC Lowe sent further details including an email chain where the Crown seemed to endorse this method of obtaining ACRs, including ACRs of accused persons already facing a charge before the court. However, I accept PC Brock’s evidence that she did not rely on this longer email in her request to obtain the Applicant’s ACR, therefore it is of no relevance to my decision.

227The state obtained both the ACR itself and any derivative use of the ACR as a result of this conduct. I find that any exclusion of the ACR would also include the exclusion of derivative evidence. This position is supported by the Supreme Court’s comments in Grant, at para. 123:

To determine whether the admission of derivative evidence would bring the administration of justice into disrepute under s. 24(2), courts must pursue the usual three lines of inquiry outlined in these reasons, taking into account the self-incriminatory origin of the evidence in an improperly obtained statement as well as its status as real evidence. [Emphasis added.]

228I find that PC Brock acted in good faith. She honestly believed that this was an acceptable method of obtaining the ACR. However, her belief was incorrect, and she unlawfully obtained personal health records without judicial authorization. Obtaining these types of medical records without a warrant breached the Applicant’s informational privacy and reasonable expectation of privacy. This is a serious infringement on her Charter rights and militates in favour of excluding this evidence.

Factor 2: Impact of the Breach on the Charter-Protected Rights of the Applicant

229The impact of this breach is significant for the Applicant. The discoverability of evidence is an important factor: Grant, at para. 125. The statement that she gave to Mr. Godelie would not have been discoverable to police had the ACR not been unlawfully obtained.

230I find that the impact of this breach on the Applicant strongly favours the exclusion of this evidence.

Factor 3: Society’s Interest in the Adjudication of the Case on its Merits

231The ACR is not real evidence, and its reliability has significant weaknesses. Mr. Godelie testified that he recorded this conversation after his interaction with the Applicant. This could have occurred nearly four hours later at the end of his shift. He also did not have a focus on recording the conversation verbatim. He recorded it with an eye to medical assessment.

232Society has a strong interest in adjudicating a case on its merits. If the Applicant gave false statements to Mr. Godelie about the collision, such as her speed, and the manner of driving of Mr. Wright, the trier of fact could draw a negative inference about her credibility and reliability. In this instance, given the purpose for recording the statements, I find that the evidence only slightly favours inclusion on this factor.

Balancing the Grant Factors

233Although I have separated the ACM and ACR analysis in these reasons for organizational sake, I have considered all the factors together and balanced them accordingly.

234Given the severity of the charges faced by the Applicant, I am cognizant of the Supreme Court’s guidance at para. 84 of Grant:

The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal sakes for the accused are high.

The ACM Data

235Even if the infringing conduct of PC Arnold is seen as more flagrant in his faulty attempts at an RTJ, and that seizing the Jeep vehicle was not justified under s. 489(2)(c), and if Sgt. Kivell’s decision to seize the Jeep under s.489(2)(c) was not authorized by law, I still find that the ACM data should be included in this trial. The infringement on the Applicant’s diminished territorial privacy right to the ACM data combined with the strong societal interest in hearing this case on its merits strongly favours inclusion. The long-term repute of the administration of justice would be damaged by the exclusion of this evidence in which the Applicant has a very limited expectation of privacy.

The ACR and Derivative Evidence

236After balancing the Grant factors, I do not find that the weighing favours including the ACR or any of its derivative evidence at trial. While the breach was in good faith, the seriousness of its impact was much more significant than what occurred with seizing the Jeep and the ACM data.

237The ACR would not have been discoverable by the police had it not been for the state infringing conduct. Therefore, I also find that any derivative evidence resulting from this breach is inadmissible.

238To be clear, the Crown is not permitted to introduce any of the Applicant’s statements to Mr. Godelie in any fashion.

Conclusion

239In conclusion, I find that the ACM data shall be included at trial. The ACR and any derivative evidence shall not be admissible at trial.