This week’s top three summaries: R v SS, 2023 ONCA 130: s.8 REP in #ambulance, R v Metzger, 2023 SCC 5: #circumstantial ID, and R v Brar, 2023 ABCA 63: #circumstantial possession.
This week's top case is an impaired driving decision. For great general reference on the law of impaired driving, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
R v SS, 2023 ONCA 130
[February 27, 2023] Charter s.8 - Reasonable Expectation of Privacy in Paramedic Questioning - Impaired Driving [Reasons by David Paciocco J.A. with S.E. Pepall and L. Favreau JJ.A concurring]
AUTHOR’S NOTE: Serious impaired driving incidents often leave accused persons going to the hospital. This means that police investigation of the most useful source of evidence (the accused) has to take a back seat to their medical injuries being dealt with. Since they are at the very least a person of interest during the transport, police officers inevitably literally take a back seat in their ambulance and take notes (or record videos) while the accused has private conversations with a medical practitioner for the purpose of obtaining medical assistance. You would think this type of conduct should receive some bright line rules so it's not up to individual litigants to sort things out each time it happens. However, you'd be wrong. The balancing act is set out in the below decision with a helpful determination for the defence.
I. OVERVIEW
[3] S.S.’s trial was conducted as a blended voir dire, in which S.S.’s application for the exclusion of evidence as the result of alleged Charter violations was conducted within the trial. (For convenience, I will refer to this blended hearing as the “trial”.) S.S. was acquitted at trial on both charges after the trial judge found section 8 Charter violations and excluded evidence that the Crown was relying on to prove that S.S was impaired by alcohol at the time of the accident.
...I would dismiss the appeal.
...P.C. Sagl located a backpack. She testified that it was near the vehicle and contained a bottle of alcohol with a lid on it. She then identified the backpack from a photograph that appeared to show the backpack not near the vehicle as she had testified but on the shoulder area of the roadway. Sgt. Byford, who had arrived on scene minutes after P.C. Sagl, testified that he had observed the backpack on the roadway.
[9] ...She sat in the back of the ambulance closer to the driver’s cab and did not identify herself to S.S. or announce her presence. The two paramedics who were also in the back of the ambulance were in uniform.
...she had little recall of the relevant events....
...Ms. Lemcke testified that she asked S.S. questions for the purpose of assessing S.S.’s medical condition. In response to those questions S.S. made statements about the speed the vehicle was travelling and his alcohol consumption. The evidence presented at the trial about the content of those statements had generic similarities but some differences in detail. The Ambulance Call Report that Ms. Lemcke prepared recorded non-verbatim responses, including that S.S. reported the “vehicle [was] travelling 120 km/hr”, and that S.S. “initially stated he had drank ‘a lot’ enroute and then stated it was 4 drinks at a house but unable to recall (beer vs liquor)”. The Ambulance Call Report also recorded that there was no obvious smell of alcohol present. P.C. Sagl’s recollection of the statements S.S. made differed somewhat from the Ambulance Call Report. P.C. Sagl testified that she overheard S.S. telling the paramedics that “he had been drinking and was travelling approximately 100 to 120 kilometres an hour” and that “he had approximately four drinks.”
[13] In the meantime, P.C. Alszegi, a qualified breath technician who had been dispatched to the hospital arrived at 12:46 a.m. and began to ready the approved instrument in order to receive samples of S.S.’s breath for analysis. He testified that at 3:02 a.m. he spoke to P.C. Sagl and “received grounds from her which include all the necessary information [for him] to continue her investigation and conduct the breath test...” He testified “my grounds were complete with Constable Sagl at 3:22 a.m.”
[14] In addition to the information that he received from P.C. Sagl, P.C. Alszegi made observations of his own which contributed to his grounds. In particular, P.C. Alszegi said that he detected a light odour of alcohol from S.S.’s breath, observed bloodshot eyes, and found S.S. to be in a “confused”, “indifferent” and “sleepy” state, speaking in a “low tone, very quiet”.
[16] On November 6, 2019, D.C. Davis applied for and obtained a search warrant for the medical blood samples that had been secured from S.S. at the hospital, as well as a production order for the medical records. He executed the search warrant and the production order the next day and furnished the blood samples and the hospital records to the Centre for Forensic Sciences with a view to obtaining an expert report relating to S.S.’s blood alcohol concentration at the time of the accident.
...The trial judge found that D.C. Davis also “took some liberties” in the Background section relating to his own conclusions relevant to the speed of the vehicle and the force with which it struck two trees, and he swore that, “There was a backpack containing an open container of alcohol located in close proximity to the vehicle.” He swore this latter assertion to be true even though he could not say where the backpack was actually located based on the photographs he relied upon, nor did he have support for his claim that the container of alcohol was open. He also failed to mention things that may have suggested an alternative explanation for the accident, namely, the road, weather, and lighting conditions.
- S.S. had a reasonable expectation of privacy during the medical assessment by Ms. Lemcke in the ambulance, and it was contrary to s. 8 of the Charter for P.C. Sagl to “search and seize” S.S.’s communications “made as part of a medical assessment”, and “observations of S.S. during the same medical assessment” (emphasis in original).
- P.C. Sagl did not have grounds to make a breath demand pursuant to s. 320.28(1) of the Criminal Code because her claim to subjectively believing that she had reasonable and probable grounds is not credible, therefore the search and seizure of S.S.’s breath contravened s. 8 of the Charter.
- P.C. Alszegi’s breath demand is not a “fresh start”. The “intentionally misleading” information that P.C. Sagl provided to P.C. Alszegi is excised from his grounds, and his own observations do not provide objectively reasonable and probable grounds for the search and seizure of S.S.’s breath samples.
- The search warrant and production order are quashed. Misleading evidence in the ITOs and information that was obtained in violation of the Charter is excised from the ITO, and the information that remains is insufficient to provide reasonable and probable grounds for these orders.
A. DID THE TRIAL JUDGE ERR IN FINDING THAT P.C. SAGL’S OBSERVATIONS IN THE AMBULANCE VIOLATED SECTION 8 BECAUSE THERE WAS NO REASONABLE EXPECTATION OF PRIVACY?
...The trial judge held that S.S. had a reasonable expectation of privacy while being medically examined in the back of the ambulance....
[31] The Crown argues instead that the trial judge erred in finding that S.S. had a reasonable expectation of privacy by: (1) failing to consider or follow this court’s “binding” precedent of LaChappelle which the Crown submitted holds that “no reasonable expectation of privacy exists in innocuous information shared in an ambulance and observed by a police officer”; and (2) finding an expectation of privacy by S.S. in the ambulance at the material time that was not proved and would not be reasonable, in the circumstances of this case.
[33] As I have described, S.S., who was injured in the accident, was placed in the back of an ambulance after being extricated from the damaged vehicle. Ms. Lemcke then conducted a medical examination in the back of the ambulance. The trial judge characterized Ms. Lemcke and S.S. as being in a medical practitioner- patient relationship at that time. The trial judge concluded that the verbal exchange between S.S. and the paramedic during that medical assessment was part of this overall medical assessment, a finding consistent with the testimony of Ms. Lemcke that the questions she asked were for the purpose of assessing S.S.’s condition. The trial judge also found that S.S. did not know that P.C. Sagl was present during S.S.’s medical examination in the ambulance and S.S. was not under police detention.
[34] Based on these factual findings, the trial judge held that in all of the circumstances S.S. had a reasonable expectation of privacy during that medical examination such that s. 8 of the Charter was violated when P.C. Sagl searched and seized the communications exchanged while that medical examination was underway.
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.
[45] In order to prevent disclosure exceptions in privacy legislation from playing this kind of role, this court has cautioned that disclosure exceptions are not to be interpreted in a way that makes privacy legislation “‘virtually meaningless’ in the context of an ongoing police investigation”, nor should disclosure exceptions be taken as defeating the reasonable expectations of privacy recognized in the legislation as a whole: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 103, 111. After all, disclosure exceptions exist not to deny privacy interests, but to protect persons who disclose private health care information pursuant to those exceptions from being prosecuted for breach of the statute.4
[47] I am therefore satisfied that the disclosure exemption that the Crown claims does not play a significant role in determining whether S.S. had a reasonable expectation of privacy. In my view, the trial judge was correct when assessing S.S.’s reasonable expectation of privacy in giving the weight that she did to the fact that the information seized by P.C. Sagl was provided as part of a medical examination being conducted to ensure S.S.’s health.
[48] With respect to the third Gomboc factor for consideration in assessing a reasonable expectation of informational privacy – “the circumstances in which [the information] was intended to be used” – the trial judge found that the information in question was intended to be used for the purpose of S.S.’s care. In this context, the trial judge’s finding, again supported by the evidence, that S.S. would not have known that P.C. Sagl was in the ambulance, takes on significance. S.S. had no reason to believe that the answers shared with the paramedic for health purposes were being captured by a police officer as part of a criminal investigation.
[51] I would reject the Crown’s appeal of the trial judge’s finding that the seizure of this information by P.C. Sagl breached S.S.’s Charter rights.
B. DID THE TRIAL JUDGE ERR IN FINDING THAT P.C. SAGL’S BREATH DEMAND CONSTITUTED A SECTION 8 VIOLATION?
[57] I therefore reject the Crown’s first premise, that P.C. Sagl’s breath demand did not result in the samples that were provided. It clearly did.
[58] Although this alone is enough to dismiss the Crown’s argument that no search occurred, I also reject the Crown’s second premise for this argument – that a breath demand is a search only if it produces breath samples. If a search within the meaning of s. 8 of the Charter does not occur until evidence has been obtained, the distinction between a search and a seizure would disappear and s. 8 would offer no protection in the case of an unsuccessful search, such as a strip search or the search of a person’s home that yields no evidence.
[60] I therefore reject the Crown’s submission that P.C. Sagl’s breath demand cannot form the basis for a s. 8 Charter violation.
C. DID THE TRIAL JUDGE ERR IN FINDING THAT THE BREATH TECH, P.C. ALSZEGI’S BREATH DEMAND WAS INVALID?
[66] As I will explain, the Crown may be correct about this, but the exclusion of the breath demand provided to P.C. Alszegi from evidence does not depend on the finding that P.C. Alszegi lacked reasonable and probable grounds for the search....
[68] ...the Crown argues that the trial judge erred in assessing the sufficiency of P.C. Alszegi’s grounds by excising from consideration the information that P.C. Sagl had shared with him....
[71] Although there is language in some of the cases suggesting that the rule relied upon by the Crown applies even where an informant officer has misled the officer whose grounds are at issue, that language is obiter and none of the cases relied upon by the Crown involve findings that the informant officer intentionally misled the officer, knowing that doing so would lead to a search. I also note that in R. v. Williams, 2022 ONCA 596, at para. 18, when applying the principles relied upon by the Crown, this court commented that there was “no suggestion” that the failure by an informant officer to communicate information that qualified the grounds for arrest “was anything other than a miscommunication”. The intimation, of course, is that the result in Williams may have been different had the informant officer intentionally misled the other officer about their grounds, as the trial judge found occurred in the “unique circumstances” of this case.
[73] I would not interfere with this finding. I have already explained why I would find that P.C. Sagl’s unconstitutional demand continued to be operative when S.S. provided the breath samples. Even though the breath samples were ultimately provided to P.C. Alszegi, subject to consideration of the “fresh start” doctrine described in R. v. Beaver, 2022 SCC 54, [2022] S.C.J. No. 54, at para. 97, the breath samples were “obtained in a manner” that violated the Charter because of P.C. Sagl’s breach.
[74] In my view, the trial judge was correct in finding that in this case the fresh start doctrine does not apply to sever the required “obtained in a manner” connection. The fresh start doctrine holds that “evidence will not be ‘obtained in a manner’ that breached the Charter when the police made a ‘fresh start’ from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous.” In this case, the breath samples are tightly linked to P.C. Sagl’s Charter breach, despite the demand made by P.C. Alszegi. As the trial judge found, his demand was “part of [a] continuing s. 8 breach by P.C. Sagl”. There is ample support for that finding. First, P.C. Sagl’s unconstitutional demand provided the legal basis for arranging for P.C. Alszegi to take a breath sample, in the first place. Moreover, P.C. Alszegi relied on P.C. Sagl’s unconstitutional demand in making his own demand. Indeed, on the trial judge’s findings, P.C. Sagl intentionally caused P.C. Alszegi to conduct a search by misleading him as to the grounds for doing so. There is no room in these circumstances for the application of the fresh start doctrine.
[76] As a result, even if the trial judge did err in finding that P.C. Alszegi did not have reasonable and probable grounds for the demand he made, this error would not affect the outcome of this appeal.
D. DID THE TRIAL JUDGE ERR IN FINDING THAT THE SEARCH WARRANT AND PRODUCTION ORDER COULD NOT HAVE ISSUED?
[77] ...Insofar as the production order is concerned, this ground of appeal is moot. The trial judge ruled that, independently of Charter exclusion, the evidence obtained by the production order, namely hospital records, was inadmissible because the Crown failed to lead evidence to demonstrate their admissibility pursuant to a hearsay exception.
[79] The Crown submits that the trial judge erred in her evaluation of reasonable and probable grounds by excising the breath sample results and the observations made by P.C. Sagl in the ambulance from the ITOs. I disagree....
[80] ...The trial judge was correct to quash the search warrant and the production order.
CONCLUSION
R v Metzger, 2023 SCC 5
[March 3, 2023] Circumstantial Evidence of Identification [Majority Reasons by Rowe J. with Martin and Kasirer JJ. concurring - Dissent: Côté and O'Bonsawin J.J.]
AUTHOR’S NOTE: The test for circumstantial evidence of identification should be rather unforgiving. This case is one of two summarized this week in which the ABCA gets circumstantial evidence right and wrong. Evidently, the intricacies of applying to test to facts in a case can frustrate even the highest courts. Here, the Crown attempted to prove ID of a home invasion perpetrator through DNA found on a cigarette butt in a vehicle of one the victims and the testimony of a victim who may have heard the name Metzger spoken during the robbery (although this recollection only came up at trial).
[2] ...Even accounting for the privileged position of the trial judge, I am satisfied that the guilty verdicts cannot be supported by the evidence: R. v. Brunelle, 2022 SCC 5, at para. 7.
R v Brar, 2023 ABCA 63
[February 27, 2023] Circumstantial Evidence of Possession of a Firearm [Martin, Schutz, and Strekaf JJ.A.]
AUTHOR’S NOTE: Here circumstantial evidence combined with the law of possession. After a shooting a man was pulled out from under a deck. A gun was found in a pail underneath the same deck. The question was whether he was in possession of the gun. However, the evidence of that possession was circumstantial. Was there a rational reason why someone would be found underneath a deck with a gun in their vicinity if it wasn't theirs? There is a second issue about police violence in this case, but that is perhaps better left for commentary on another day.
The Court:
[2] The appellant was charged with numerous offences related to the possession of that handgun. Following a trial by judge alone, he was convicted as charged. He appeals arguing the convictions are based on a misunderstanding of the law and further that the trial judge erred in finding the police acted reasonably when they beat him upon arrest.
Background
[4] At 6:12 PM, officers in the helicopter advised their colleagues on the ground of a suspicious person by an address referred to as #7 Saddlecrest. Members of the TAC team responded. They observed a deck partially surrounding the back of the house. The deck was clad with wood covered by lattice with an opening large enough for a person to crawl through. An officer shone his flashlight through the opening but could not see anyone. He called for K-9...
[6] Almost immediately, the appellant screamed in pain as the dog bit his leg and began pulling him out, as he had been trained to do. As this was happening, the police instructed the appellant to come out with the dog. The events that followed were video recorded by the police helicopter hovering overhead.
[7] The dog emerged from the opening with the appellant firmly in tow. The appellant was pulled out on his stomach with his hands above his head. One of the officers then knelt either on or beside the appellant’s right shoulder, reaching to secure his right hand. Another officer stood above the appellant with a rifle pointed at, or pressed against, the appellant’s back. The K-9 officer moved behind the police dog, who was still clamped on the appellant’s leg and shaking him. The fourth officer, Constable Wilkinson, on the appellant’s left side, repeatedly punched him in the face.
[9] The trial began with a voir dire to determine whether the assault of the appellant violated his section 7 Charter rights, and if so, whether the charges should be stayed. Ultimately, the trial judge found that the appellant’s section 7 rights had not been violated as the assault was justified pursuant to section 25 of the Criminal Code.
[10] ...The appellant then testified. He explained that he was working as an apprentice electrician in another neighbourhood when his supervisor, a man named Dhillon, received a phone call advising that there was to be a fight at the park. Both men then left their workplace in Dhillon’s vehicle to watch the fight. The appellant explained that on arrival he noted a group of men standing in the park and that shortly thereafter a white Honda motor vehicle pulled up and stopped abruptly. He said that four or five men emerged from that vehicle, confronted the other group, and exchanged gunfire.
[12] He insisted he did not have a gun at the park, that he did not have a gun when he hid under the deck, and that the handgun found there was not his.
[14] ...The trial judge...
...However, she rejected his testimony that the gun was not his. She found it was and convicted him accordingly.
Grounds of Appeal
I) That the Trial Judge Misapprehended the Law Regarding Circumstantial Proof of Guilt
[18] It appears that some of the other assailants involved in the gunfight fled past #7 Saddlecrest, and it was a man with a hoodie seen emerging from the side of #7 Saddlecrest by officers in the helicopter that prompted officers on the ground to attend there approximately 30 minutes after their arrival at the park.
i. That someone not involved in the gunfight had placed it there on a previous occasion; or
ii. That one of the persons involved in the gunfight had placed it there and then left the area before the appellant’s arrival.
Is there a reasonable, rational, alternative explanation for the Discovered Handgun other than it was Mr. Brar who possessed and controlled the Discovered Handgun and hid it under the deck? In considering this, I remind myself not to draw inferences based on speculation or narrative that somehow connects facts to inferences sought to be drawn. Inferences must be reasonable and based on the proven facts: TR 621/29-330 [emphasis added]
At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts” ... However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts.
[25] ...In the result, alternative inferences other than guilt may not have been considered or were dismissed because they were not based on proven facts.
II) That the Trial Judge Erred in Finding the Force Used to Effect the Arrest of the Appellant was Objectively Reasonable
[30] Constable Wilkinson testified that he did this as a means of ensuring his safety and that of his fellow officers. He acknowledged that the police dog, still clamped on the appellant’s leg, was by itself a form of stunning. However, as he testified: “he [the appellant], in my opinion, needed further stunning”: TR 323/23 and “I kept punching him to keep him occupied until the members were able to control his hands”: TR 328/36-37.
[31] Significantly, Constable Wilkinson also testified that although the appellant’s arms were above his head when he emerged from the hole, after he started hitting the appellant one of his hands began moving toward his waist where a weapon may have been concealed. That evidence was supported by the testimony of the other officers.
The Applicable Law
While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences. [emphasis added]
[36] ...Ultimately, the question is not whether some force was necessary to secure the appellant’s hands, but whether the degree of force used was objectively reasonable.
[40] ...in determining the degree of force necessary, the trial judge need not have found that only one response was appropriate. For example, a finding that it would have been sufficient to put a foot on the appellant’s left arm to stop him from reaching for his waist would not necessarily have rendered any other response unreasonable. Rather, the trial judge should have focussed on the nature of the force used and ask whether in the circumstances that degree of force was objectively reasonable.
This evidence whether there were other reasonable options open to the police officer short of employing deadly force goes directly to the issue of whether the Crown had established on a balance of probabilities that the police officer’s belief that deadly force was necessary was in fact objectively reasonable.
Defence counsel suggested that Constable Wilkinson could have taken other actions that were available to him, other than administering the stun punches to Mr. Brar's face area. While it is the case that there may have been other options available to Constable Wilkinson, he was reacting in real time to rapidly occurring events, as is clear from the video footage, and making what he believed was the best course of action to ensure reasonably the safety of himself and his fellow officers: TR 498/32-37.
While it is regrettable that Constable Wilkinson's stun punches resulted in serious injuries to Mr. Brar, I am of the view that this amount of force used by Constable Wilkinson in these circumstances was subjectively and objectively necessary, reasonable, and proportional: TR 499/27-30.
